Johnson v. Lazeroff

Filing 23

Order This court adopts Judge McHargh's R&R (ECF No. 13 ) in its entirety and hereby denies Johnsons Petition for Writ of Habeas Corpus (Pet., ECF No. 1 ). The court also certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Signed by Judge Solomon Oliver, Jr on 12/30/2015. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

EFREM R. JOHNSON,
Petitioner
v.
ALAN LAZAROFF, Warden,
Respondent

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Case No.: 5:14 CV 839

JUDGE SOLOMON OLIVER, JR.

ORDER

On April 18 2014, Petitioner Efrem R. Johnson (“Petitioner” or “Johnson”) filed a Petition
for Writ of Habeas Corpus (“Petition”) (Pet., ECF No. 1) pursuant to 28 U.S.C. § 2254 in the abovecaptioned case, challenging the constitutionality of his convictions. In his Petition, Johnson raised
a single ground for relief – that the trial court failed to advise him of his right to appeal his sentence,
and failed to advise him of his right to counsel for that appeal (“Ground One”). (Pet. at 6-7.)
Pursuant to Local Rule 72.2, this court referred the case to Magistrate Judge Kenneth S.
McHargh (“Magistrate Judge” or “Judge McHargh”), on June 18, 2014, for preparation of a Report
and Recommendation (“R&R”). On August 19, 2014, Respondent Alan Lazaroff filed a Return of
Writ, arguing that Ground One had been procedurally defaulted. (ECF No. 8, at 11-14. ) Johnson
filed a Traverse (ECF No. 10) on September 17, 2014.
On August 31, 2015, Judge McHargh submitted an R&R, recommending that this court deny
the Petition. (R&R 18, ECF No. 13.) Specifically, the Magistrate Judge found that Ground One was
procedurally defaulted in both the Ohio Court of Appeals and the Supreme Court of Ohio. (Id. at 15,
17.) On December 2, 2015, Petitioner filed a timely Objection (Obj., ECF No. 22) to Judge

McHargh’s R&R. After conducting a de novo review, this court finds that the Magistrate Judge’s
conclusions are fully supported by the record and controlling case law, and therefore, the court
adopts the R&R (ECF No. 13) in its entirety.
In denying Ground One as procedurally defaulted, Judge McHargh explained that the Ohio
Court of Appeals had properly applied Ohio Appellate Rule 3(D) when it found that Johnson had
failed to file a valid notice of appeal. (R&R at 10-11.) The Magistrate Judge based his conclusion
on recent Ohio cases – State v. Pond, No. 91061, 2009 WL 478212, at *1 (Ohio Ct. App. Feb. 26,
2009) and State v. Stewart, No. 86411, 2006 WL 440153, at *9 (Ohio Ct. App. Feb. 23, 2006) –
where courts similarly dismissed notices of appeal that failed to designate the judgment from which
the appeal was sought to be taken. (Id. at 11.)
In his Objection, Petitioner nonetheless asserts that the Ohio Court of Appeals abused its
discretion in dismissing his appeal on the basis of a “minor technical, correctable, inadvertent
violation fo a rule . . . .” (Obj. 5, ECF No. 22.) In support of this contention, Petitioner points the
court to Transamerica Ins. Co. v. Nolan, 72 Ohio St. 3d 320 (1995). (Id. at 3.) However, Petitioner’s
argument is not well taken. In Transamerica, the Supreme Court of Ohio held that the Court of
Appeals erred in dismissing Linda Wallace’s appeal based on the fact that the notice of appeal listed
appellants as “Dennis Wallace et al.” Transamerica Ins. Co., 72 Ohio St. 3d at 321-23. However,
central to the court’s holding was the determination that the appellees were not prejudiced by the
use of the “et al.” designation, since they were aware of Mrs. Wallace’s claim and assumed she was
party. Id. at 322. By contrast, in Johnson’s case, the Court of Appeals might reasonably have
concluded that the defect in Petitioner’s notice – failure to designate the judgment from which an
appeal was sought to be taken – would prejudice an opposing party. Moreover, even if the Court of

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Appeals erred, Johnson procedurally defaulted his claim by failing to properly file a timely appeal
in the Supreme Court of Ohio, as discussed in the Magistrate Judge’s R&R. (R&R 15-17, ECF No.
13.)
Accordingly, this court adopts Judge McHargh’s R&R (ECF No. 13) in its entirety and
hereby denies Johnson’s Petition for Writ of Habeas Corpus (Pet., ECF No. 1). The court also
certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken
in good faith, and that there is no basis on which to issue a certificate of appealability. Fed. R. App.
P. 22(b); 28 U.S.C. § 2253(c) (2015).
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

December 30, 2015

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