Smith v. Sheldon
Filing
17
Opinion and Order For the reasons stated in the Order, the Court overrules Petitioner's Objection (Doc. #: 16 ), and adopts in full Magistrate Judge Knepp's Report and Recommendation (Doc. #: 13 ). The above-captioned case is hereby dismissed as final. Signed by Judge Dan Aaron Polster on 9/12/2018. (K,K)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FREDERICK SMITH,
Petitioner
v.
EDWARD SHELDON,
Respondent.
) Case No. 5:17-CV-02338
)
) Judge Dan Aaron Polster
)
) OPINION AND ORDER
)
)
)
)
)
This case is before the Court on the Report and Recommendation (“R & R”) of Magistrate
Judge Knepp. (Doc. #: 13). The Magistrate Judge recommends that the Court grant the
Respondent, Edward Sheldon’s Motion to Dismiss (Doc. #: 8), and dismiss Petitioner Frederick
Smith’s 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus by a Person in State Custody. (Doc.
#: 1). On August 31, 2018, Smith timely filed Objections to Judge Knepp’s R & R. (Doc. #: 16)
The Court has carefully reviewed the R & R and Smith’s Objections, and hereby OVERRULES
Smith’s Objections and ADOPTS the R & R in full. Smith’s Petition is DISMISSED WITH
PREJUDICE.
I.
Intending to appeal his rape and aggravated assault convictions, on November 8, 2016,
Smith, proceeding pro se, mailed a Notice of Appeal to the Ohio Supreme Court before the
November 14th deadline. The Ohio Supreme Court received Smith’s Notice on November 14,
2016, but found that it did not contain all of the documents required by the Supreme Court’s Rules
of Practice. On November 15, 2016, the Ohio Supreme Court returned Smith’s Notice and
documents with a letter informing him that he had failed to meet the filing requirements.
On November 21, 2016, Smith mailed a Motion for Leave to File a Delayed Appeal
(“Motion for Delayed Appeal”) with the Ohio Supreme Court. Once again, Smith’s filing did not
meet the requirements of the Supreme Court’s Rules of Practice. On December 6, 2016, Smith
corrected and re-mailed his Motion for Delayed Appeal. On February 22, 2017, the Ohio Supreme
Court denied Smith’s Motion for Delayed Appeal without reaching the merits and dismissed the
case.
On November 6, 2017, Smith timely filed a 28 U.S.C. § 2254 Petition for Writ of Habeas
Corpus by a Person in State Custody. (Doc. #: 1). Respondent filed a Motion to Dismiss on
February 16, 2018. (Doc. #: 8), and Smith timely filed a Reply Brief on May 14, 2018. (Doc. #:
11). Magistrate Judge Knepp issued his Report and Recommendation on July 26, 2018,
recommending dismissal. (Doc. #: 13). Smith timely filed Objections on August 31, 2018.
(Doc. #: 16).
II.
Smith’s Petition for Writ of Habeas Corpus asserts three grounds for relief:
Ground One:
Denial of Fifth and Fourteenth Amendment rights when the
Ohio Supreme Court denied Petitioner’s motion for delayed
appeal.
Ground Two:
Insufficient evidence to support ground one (rape).
Ground Three:
Due process violations from the court’s abuse of discretion in:
1) admitting Defendant’s prior out-of-court statement; 2)
allowing the state to amend count on at conclusion of the State’s
case; and 3) ordering consecutive sentences.
(Doc. #:1 at 5-8).
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Magistrate Judge Knepp’s R & R distinguishes between Smith’s first ground for relief and
Smith’s second and third grounds for relief. The R & R holds that Smith’s first ground for relief is
“not one which is appropriate for federal habeas review because Petitioner is not challenging his
detention or conviction on this ground.” (Doc. #: 13 at 11). The R & R further holds that Smith’s
second and third grounds for relief were procedurally defaulted because they were decided on an
adequate and independent state ground, and that Petitioner has not demonstrated “cause” for him
to neglect the procedural rule.
Smith’s objections are largely incoherent, however, Smith’s first objection appears to be
that his first ground for relief does, in fact, challenge his underlying conviction. Smith’s first
ground for relief challenges the Ohio Supreme Court’s denial of his Motion for Delayed Appeal—
a post-conviction proceeding. It does not challenge any trial court practice that resulted in his
conviction. Therefore it is not appropriate for habeas review. See Kirby v. Dutton, 794 F.2d 245,
247 (6th Cir. 1986) (“the writ [of habeas corpus] is not the proper means by which prisoners should
challenge errors or deficiencies in state post-conviction proceedings . . . because the claims address
collateral matters and not the underlying state conviction giving rise to the prisoner's
incarceration.”).
Smith’s other objections all seem to pertain to his procedural default. Denial of an untimely
appeal is a procedural ruling. See, e.g., Smith v. State of Ohio Dep't of Rehab. & Corr., 463 F.3d
426, 432 (6th Cir. 2006); Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004); Henson v. Hudson,
No. 3:08-CV-600, 2009 WL 2567727, at *3 (N.D. Ohio Aug. 17, 2009). A petitioner may still
avoid default, however, if he or she can demonstrate “that there was ‘cause’ for him to not follow
the procedural rule and that he was actually prejudiced by the alleged constitutional error.” Maupin
v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
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Smith cannot and does not show any cause why he was unable to timely file his appeal to
the Ohio Supreme Court. “Since both cause and prejudice must be shown to excuse a procedural
default, the failure to establish cause eliminates the need to consider prejudice.” Id. at 497. In his
Objections, Smith alludes that he was prejudiced, but does not give any good cause why he was
unable to timely file the correct documents. There was no “‘objective factor external to the defense’
[that] prevented [his] compliance with [the] state procedural rule.” Bonilla v. Hurley, 370 F.3d at
498 (quoting Murray v. Carrier, 477 U.S. 478, 494-95 (1986).). Smith does not contest that he
made procedural missteps during the filing of his Motion for Delayed Appeal. See (Doc. #: 16 at
1). Therefore, Smith has not and cannot show cause why he did not comply with the Ohio Supreme
Court’s Rules of Practice.
Finally, Smith objects to his procedural default by asserting his innocence. “[I]n an
extraordinary case, where a constitutional violation has probably resulted in the conviction of one
who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing
of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 479–80 (1986). Smith states
that “the evidence [of his innocence] is apparent from the record,” (Doc. #: 16 at 4), but identifies
no new evidence that leads this Court to believe that Smith is actually innocent.
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III.
Accordingly, the Court OVERULES Petitioner’s Objection (Doc. #: 16), ADOPTS IN
FULL Magistrate Judge Knepp’s Report and Recommendation (Doc. #: 13). The above-captioned
case is hereby DISMISSED AS FINAL.
IT IS SO ORDERED.
/s/Dan Aaron Polster___September 12, 2018
Dan Aaron Polster
United States District Judge
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