Seay v. Warden, Southern Ohio Correctional Facility

Filing 27

REPORT AND RECOMMENDATIONS that the Petition be dismissed with prejudice re 1 Petition for Writ of Habeas Corpus filed by Ernest Seay. Petitioner should be denied a certificate of appealability and the Court should certify to the Court of Appeals that any appeal would be objectively frivolous. Objections to R&R due by 10/15/2012. Signed by Magistrate Judge Michael J Newman on 9/28/2012. (gh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ERNEST SEAY,
:
Petitioner,

Case No. 1:10-cv-828
:

-vs-

District Judge S. Arthur Spiegel
Magistrate Judge Michael R. Merz

WARDEN, Oakwood Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Ernest Seay brought this habeas corpus action pro se to obtain relief from his
conviction in the Hamilton County Common Pleas Court on two counts of aggravated robbery,
escape, and a firearm specification (Petition, Doc. No. 1, ¶ 5.) He pled guilty to these offenses in
return for dismissal of other charges. Id.. ¶6(b).
Seay pleads the following grounds for relief, denominated as “Propositions of Law”:
Proposition of Law One: “The trial court abused its discretion by
imposing an excessive sentence that is not supported by the
record.”
Proposition of Law Two: “The Sixth and Fourteenth
Amendments to the Constitution of the United States prohibits the
imposition of a maximum consecutive sentence unless the fact
required for the enhancement has been admitted by the Defendant
or found by a jury beyond a reasonable doubt.”
Proposition of Law Three: “The appellant maintains that trial
counsel provide ‘ineffective assistance of counsel.’”

Proposition of Law Four: “Sentence violates ‘equal protection of
the laws’ as guaranteed by section 1 of Amendment XIV as well as
‘due process’ clauses of Amendment V and Amendment XIV of
the Constitution of the United States.”
Proposition of Law Five: “Prosecution and conviction of multiple
counts, as it applies to the instant case, is a violation of the ‘double
jeopardy’ clause of Amendment V and likewise a violation of the
‘due process’ clauses of Amendments V and XIV of the
Constitution of the United States.”
Proposition of Law Six: “The appellant’s sentence is a violation
of the ‘cruel and unusual punishment’ clause of Amendment VIII,
and likewise the ‘due process’ clauses of Amendments V and XIV
of the Constitution of the United States.”
Proposition of Law Seven: “The appellant was not afforded the
effective assistance of counsel in violation of Amendment VI to
the United States Constitution because counsel failed to present
material witnesses and other support regarding the appellant’s
disorder.”
Proposition of Law Eight: “The appellant was not afforded the
effective assistance of counsel in violation of Amendment VI to
the Constitution of the United States because counsel failed to
move the court to sever charges that occured on seperate dates.”
Proposition of Law Nine: “The appellant was not afforded
effective assistance of counsel in violation of Amendment VI to
the United States Constitution because counsel provided false
information that convinced the appellant to change his plea to
guilty.”
Proposition of Law Ten: “The appellant’s Sixth and Fourteenth
Amendment rights were violated when the trial court judge did not
recuse herself and trial counsel was ineffective for not moving for
disqualification or recusal.”
Proposition of Law Eleven: “The appellant’s right to a speedy
trial in Amendment VI of the United States Constitution was
violated by the trial court when it overruled the Motion to
Dismiss.”
Proposition of Law Twelve: “The trial court erred, and due
process was denied, when the court did not consider the
‘substantial assistance’ by the appellant in numerous felony and

murder convictions.
(Petition, Doc. No. 1.)

Procedural History

Seay was indicted in 2005 on criminal charges arising out of separate incidents on
September 5th and September 12th of that year. He failed to appear for arraignment and remained
at large until April 2008. After competency and NGRI evaluations he pled guilty on March 30,
2009, to the offenses and the firearm specification for which he was sentenced. He took a direct
appeal to the First District Court of Appeals which affirmed the conviction and sentence June 23,
2010. Proceeding pro se, he then attempted a delayed further direct appeal to the Ohio Supreme
Court which declined to take the case.
During the pendency of his direct appeal, he filed a petition for post-conviction relief
under Ohio Revised Code § 2953.21. The Hamilton County Common Pleas Court denied relief
and that judgment was affirmed by the court of appeals March 9, 2012. Seay appealed to the
Ohio Supreme Court which declined to take jurisdiction on July 25, 2012.
This case was filed November 23, 2010. On October 12, 2011, the case was stayed to
await the outcome of Seay’s appeal of denial of his petition for post-conviction relief. After
learning by a sua sponte check of the Ohio Supreme Court’s website that that court had denied
relief, this Court vacated the stay and ordered completion of the record, setting an amended
return date of August 20, 2012, and an amended reply date for twenty-one days after the
amended return. An Amended Return was filed on August 15, 2012. No amended reply has
been filed and the time for Seay to do so has expired.

Analysis

Respondent argues in the Supplemented Return of Writ that all of Petitioner’s claims are
procedurally defaulted (Doc. No. 26, PageID 405. The procedural default defense in habeas
corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
adequate and independent state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413
(6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97
(6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme

court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S.
838, 848 (1999)(citations omitted).

“Even if the state court failed to reject a claim on a

procedural ground, the petitioner is also in procedural default ‘by failing to raise a claim in state
court, and pursue that claim through the state’s ordinary appellate procedures.’” Thompson v.
Bell, 580 F.3d 423, 437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006), quoting O’Sullivan v. Boerchel, 526 U.S. 838, 846-47 (1999).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir.), cert. denied sub nom, Eley v. Hauk,
__ U.S. __, 131 S.Ct. 822 (2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin,785 F.2d at 138.

Because the defaults asserted against Petitioner are conceptually separate, the Court will
group them for analysis as they have been grouped in the Supplemented Return of Writ.

Grounds One, Two, and Three

In his first ground for relief, Petitioner asserts his sentence was excessive. The second
claim asserts the sentence was based on facts not found by a jury, essentially a claim under
Blakely v. Washington, 542 U.S. 296 (2004)(See Petition, Doc. No. 1, PageID 19, n. 7 citing
Blakely.) The third ground for relief asserts ineffective assistance of trial counsel in various
respects. These are the three assignments of error Seay raised on direct appeal to the Hamilton
County Court of Appeals (Appellant’s Brief, Ex. 20 to Supplemented Return of Writ, quoted at
Doc. No. 26, PageID 400.) However, once the court of appeals had affirmed his conviction,
Seay failed to file a timely appeal to the Ohio Supreme Court.

That court dismissed his

attempted appeal as untimely. (Entry, Ex. 24 to Supplemented Return of Writ, Doc. No. 26.)
The Sixth Cirtcuit has held that the 45-day time limit on appeal to Ohio Supreme Court is
an adequate and independent state ground. Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004). Seay
has offered no excusing cause and prejudice. Therefore his first three grounds of relief should be
dismissed with prejudice as barred by his procedural default in appealing to the Ohio Supreme
Court.

Grounds Four, Five, Six, Eleven, and Twelve

Respondent asserts these five Grounds for Relief are procedurally defaulted because they

have never been presented to any Ohio court. Respondent raised this defense in both the original
Return of Writ (Doc. No. 16, PageID 198) and in the Supplemented Return (Doc. No. 26,
PageID 410) and Petitioner has never responded.
A criminal defendant may not deliberately bypass an opportunity to raise a constitutional
claim in the state courts and reserve it to be raised in the first instance in federal habeas. Fay v.
Noia, 372 U.S. 391 (1963). To the extent Seay makes claim for the first time in his Petition
which he never raised in the state courts, any such claims are procedurally defaulted, particularly
because there is presently no Ohio state forum in which they could be raised. Grounds for Relief
Four, Five, Six, Eleven, and Twelve should be dismissed with prejudice as procedurally
defaulted.

Grounds Seven, Eight, Nine, and Ten

In Grounds for Relief seven, Eight, Nine, and Ten, Petitioner raises various claims of
ineffective assistance of trial counsel. These claims were first presented to the state courts in a
petition for post-conviction relief under Ohio Revised Code § 2953.21. The Hamilton County
Common Pleas Court dismissed all four claims on the basis of Ohio’s criminal res judicata
doctrine and failure to submit sufficient evidence dehors the record. (Entry Denying Petition to
Vacate, Ex. 26 to Supplemented Return of Writ, Doc. No. 26, PageID 456-457.) The Hamilton
County Court of Appeals affirmed on the same bases given by the Common Pleas Court.
(Judgment Entry, Ex. 34 to Supplemented Return of Writ, Doc. No. 26, PageID 469-470, citing
State v. Perry, 10 Ohio St. 2d 175 (1967)(for the res judicata holding) and State v. Jackson, 64
Ohio St. 2d 107 (1980)(for the evidence dehors the record holding).

Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St.
2d 175 (1967), is an adequate and independent state ground. Durr v. Mitchell, 487 F.3d 423, 432
(6th Cir. 2007); Buell v. Mitchell, 274 F. 3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d
417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d
155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913
(S.D. Ohio 2001). Judge Moore recognizes this as a ruling of the Sixth Circuit in Mason v.
Mitchell,320 F.3d 604 (6th Cir. 2003), citing Coleman v. Mitchell, supra, Rust v. Zent, supra, and
Riggins v. McMackin, 935 F.2d 790 (6th Cir. 1991).
The rule in State v. Jackson, supra, is the corollary to the Perry res judicata rule. Perry
requires that claims which can be raised on direct appeal because they can be demonstrated from
the record be actually raised on direct appeal. Conversely, claims which could not have been
raised on direct appeal but must be shown by evidence outside the record must in fact be
supported by evidence outside the record. This rule is adequate and independent for the same
reason the Perry rule meets that test.
As with prior instances of procedural default, Seay has offered no excusing cause.
Therefore Grounds Seven, Eight, Nine, and Ten should be dismissed with prejudice.

Conclusion

In accordance with the foregoing analysis, it is respectfully recommended that the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with

this conclusion, Petitioner should be denied a certificate of appealability and the Court should
certify to the Court of Appeals that any appeal would be objectively frivolous.

September 28, 2012.

s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See, United
States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).