Lewis v. Clipper

Filing 15

Memorandum of Opinion and Order. The Court adopts and accepts the Magistrate Judge's Report and Recommendation (Related doc # 12 ). Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is dismissed as proced urally defaulted. The Court finds an appeal from this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3). Since Petitioner has not made a substantial showing of a denial of a constitutional right directly related to his conviction or custody, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Rule 11 of Rules Governing § 2254 Cases. Judge Christopher A. Boyko on 1/4/2019. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN LEWIS,
Petitioner,
vs.
WARDEN KIMBERLY CLIPPER,
Respondent.

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CASE NO. 5:17-CV-2400
JUDGE CHRISTOPHER A. BOYKO

MEMORANDUM OF OPINION
AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner John Lewis’s Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus. (ECF #1). For the following reasons, the Court accepts and
adopts the Magistrate Judge’s Report and Recommendation. The Court DISMISSES
Petitioner’s Petition in its entirety as procedurally defaulted.
FACTS
The State of Ohio indicted Petitioner of multiple charges stemming from the assault of
his former girlfriend. On September 21, 2015, a jury convicted him. The trial court sentenced
him to an aggregate term of imprisonment of thirteen years. On December 31, 2015, Petitioner
timely appealed his conviction and sentence. The appellate court affirmed the conviction on
May 10, 2017.
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On July 24, 2017, Petitioner mailed a Notice of Appeal and Motion to File Delayed
Appeal with the Ohio Supreme Court. Petitioner based his Motion on his appellate counsel’s
failure to timely inform Petitioner of the appellate court’s decision. On September 27, 2017, the
Ohio Supreme Court denied Petitioner’s Motion for Delayed Appeal and dismissed the case.
On November 15, 2017, Petitioner filed the current Petition under 28 U.S.C. § 2254.
This Court referred Petitioner’s Petition to the Magistrate Judge for a Report and
Recommendation. On August 31, 2018, the Magistrate Judge issued his Report and
Recommendation, in which he recommended that the Court dismiss the Petition as procedurally
defaulted. On November 13, 2018, Petitioner mailed his Objection to the Report and
Recommendation.
STANDARD OF REVIEW
A habeas petitioner must exhaust state court remedies prior to petitioning for a writ of
habeas corpus in federal court. 28 U.S.C. § 2254(b)-(c). Any claims not stated before state court
while remedies are available or before procedural rules prevent state courts from reaching the
merits of claims are procedurally defaulted and a federal court may not consider the claims.
Seyomour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000). Absent either cause and prejudice or
a finding of actual innocence, a federal court will not reach the merits of claims that have been
procedurally defaulted in state court by a state prisoner in his direct appeal. Reed v. Farley, 512
U.S. 339, 354 (1994); William v. Anderson, 460 F.3d 789, 805-06 (6th Cir. 2006). Procedural
default results when: 1) the petitioner did not comply with a state procedural rule that is
applicable to his claim; 2) a state court enforced the procedural rule in his case; and 3) “the
procedural forfeiture is an ‘adequate and independent’ state ground for foreclosing review of a

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federal constitutional claim.” Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2000) (citing Maupin
v. Smith, 785 F.2d 135, 138 (6th Cir, 1986)).
Finally, Rule 8(b)(4) of the rules Governing § 2254 states:
A judge of the court shall make a de novo determination of those portions
of the report or specificed proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or modify in
whole or in part any findings or recommendations made by the magistrate.
ANALYSIS
The Magistrate Judge recommended that the Court dismiss the Petition because it was
procedurally defaulted. Petitioner objects, arguing that his procedural default should be excused
because his appellate counsel provided ineffective assistance when she sent the appellate court’s
decision to the incorrect address, thus causing his untimely appeal to the Ohio Supreme Court.
This resulted in prejudice because he did not have the opportunity to rebut the appellate court’s
denial of his appeal.
The Court agrees with the Magistrate Judge and holds that Petitioner’s habeas claims are
procedurally defaulted. Petitioner admits he did not comply with Ohio’s procedural rules.
Petitioner had forty-five days from May 10, 2017, or until June 26, 2017, to file his Notice of
Appeal with the Ohio Supreme Court. OHIO S.CT.PRAC.R. 7.01(A)(1). On July 24, 2017, after
the expiration of the forty-five day appeal period, Petitioner filed a Motion for Delayed Appeal,
which is allowed under the Ohio Supreme Court Rules. See id. at 7.01(A)(4). On September 27,
2017, the Ohio Supreme Court denied Petitioner’s Motion in a form entry, thus enforcing its
rules. Finally, the Sixth Circuit has determined that denial of a motion for delayed appeal is an
adequate procedural ground to foreclose federal habeas review. Smith v. State of Ohio Dep’t of
Rehab. & Corr., 463 F.3d 426, 431-32 (6th Cir. 2006) (citing Bonilla v. Hurley, 370 F.3d 494,
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497 (6th Cir. 2004)). Thus, Petitioner’s three habeas claims are procedurally defaulted.
In order to overcome this procedural default, Petitioner must demonstrate either (1) cause
and prejudice or (2) make a showing of actual innocence. It is clear that Petitioner has not
established his actual innocence as he has failed to present “new reliable evidence...that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Accordingly, Petitioner must
demonstrate cause and prejudice to defeat his procedural default.
Petitioner argues that his ineffective assistance of appellate counsel claim is cause for the
procedural default of his habeas claims. Cause is found when a habeas petitioner demonstrates
that “some objective factor external to the defense” prevented the petitioner’s compliance with a
state procedural rule. Bonilla, 370 F.3d at 498 (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986). Ineffective assistance of appellate counsel may serve as cause to overcome procedural
default. Dietz v. Money, 391 F.3d 804, 809 (6th Cir. 2004). Moreover, an appellant counsel’s
failure to notify her client of the appellate court’s decision is constitutionally deficient
performance necessary to demonstrate cause. Smith, 463 F.3d at 434-35.
However, even assuming Petitioner’s appellate counsel provided ineffective assistance of
counsel, Petitioner’s claims are still procedurally defaulted. “A claim of ineffective assistance of
counsel must be presented to the state courts as an independent claim before it may be used to
establish cause for procedural default.” Deitz, 391 F.3d at 809 (citing Edwards v. Carpenter,
529 U.S. 446, 452 (2000)). “An ineffective assistance of counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally defaulted.” Edwards, 529 U.S. at
453. In Ohio, claims of ineffective assistance of appellate counsel must be raised in a delayed
motion for reconsideration in the state appellate courts before asserting them in the federal

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courts. See OHIO R. APP. P. 26(B); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001)
(citing State v. Murnahan, 63 Ohio St.3d 60 (1992).
Here, Petitioner never filed a delayed motion for reconsideration with the Court of
Appeals to assert his claim of ineffective assistance of appellate counsel based on her failure to
deliver prompt notice of the court’s decision.1 Petitioner has also failed to show cause for not
asserting his ineffective assistance of appellate counsel properly before the Ohio courts. And as
discussed above, Petitioner has not demonstrated actual innocence necessary to overcome the
procedural default of his ineffective assistance of appellate counsel claim.
Because Petitioner’s ineffective assistance of appellate counsel claim is itself
procedurally defaulted and he has not shown “cause and prejudice” for that default, Petitioner’s
ineffective assistance of appellate counsel claim cannot serve as “cause” to excuse his three
procedurally defaulted habeas claims.
CONCLUSION
For the foregoing reasons, the Court ADOPTS and ACCEPTS the Magistrate Judge’s
Report and Recommendation, and DISMISSES Petitioner’s Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus as procedurally defaulted.
The Court finds an appeal from this decision could not be taken in good faith. 28 U.S.C.

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Based on the Court’s review of the state record, it appears that Petitioner did file a
delayed motion for reconsideration with the state appellate court on April 12, 2018. However,
that motion was based on Petitioner’s appellate counsel’s ineffective assistance relating to failure
to raise a particular claim, not based on counsel’s failure to timely notify Petitioner of the court’s
decision. Furthermore, the justification for the delay was based on Petitioner’s failure to timely
receive the trial transcripts, which he finally did in the current matter before the Court. Either
way, the appellate court denied the motion based on Petitioner’s untimely filing in accordance
with Ohio Appellate Rule 26(B)(1). State v. Lewis, Case No. CA-28064 (9th Dist. Ohio App. Ct.
Aug. 15, 2018).
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§ 1915(a)(3). Since Petitioner has not made a substantial showing of a denial of a constitutional
right directly related to his conviction or custody, the Court declines to issue a certificate of
appealability. 28 U.S.C. § 2253(c)(2); FED. R. APP. P. 22(b); Rule 11 of Rules Governing § 2254
Cases.

IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: January 4, 2019

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