Peters v. Warden Ross Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealabili ty and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/26/2018. Signed by Magistrate Judge Michael R. Merz on 1/12/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ABDUR RAHIM PETERS,
Petitioner,

:

- vs -

Case No. 1:16-cv-1159
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

Warden,
Ross Correctional Institution
:
Respondent.

REPORT AND RECOMMENDATIONS

With the assistance of counsel, Petitioner Abdur Rahim Peters brought this habeas corpus
action under 28 U.S.C. § 2254 to obtain relief from his conviction in the Clermont County Court
of Common Pleas (Petition, ECF No. 1). On Magistrate Judge Bowman’s Order (ECF No. 3),
Respondent has filed the state court record (ECF No. 6) and a Return of Writ (ECF No. 7). Judge
Bowman set a deadline for a reply of twenty-one days after the answer was filed (ECF No. 3,
PageID 32). However, that time has expired and no reply has been filed. The magistrate judge
reference in the case was transferred to the undersigned to help balance the magistrate judge
workload in the Western Division of this Court.

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Procedural History

On May 1, 2014, the Clermont County grand jury indicted Petitioner on charges of
attempted aggravated murder, attempted murder, six counts of aggravated robbery, six counts of
felonious assault, and two counts of aggravated burglary, all with firearm specifications. Pursuant
to plea negotiations, Peters pleaded guilty to two counts of aggravated robbery, three counts of
felonious assault, and one count of aggravated burglary, all with the firearm specification. He was
then sentenced to an aggregate prison term of twenty-seven years. The conviction and sentence
were affirmed on direct appeal to the Twelfth District Court of Appeals. State v. Peters, 2015Ohio-2013, 2015 Ohio App. LEXIS 1941, 2015 WL 3385040 (12th Dist. May 26, 2015). Peters
did not appeal to the Ohio Supreme Court, but filed a Post-Conviction Brief in the Common Pleas
Court (State Court Record, ECF No. 6, PageID 147, et seq.). The Common Pleas Court construed
the filing alternatively as a post-conviction petition under Ohio Revised Code § 2953.21 and a
motion to withdraw guilty plea and denied relief (Decision/Entry, State Court Record, ECF No. 6,
PageID 177, et seq.). The Twelfth District again affirmed. State v. Peters, 2016-Ohio-5288, 2016
Ohio App. LEXIS 3137 (12th Dist. Aug. 8, 2016). Again, Petitioner did not appeal to the Ohio
Supreme Court, but filed the instant Petition on December 21, 2016 (ECF No. 1).

Analysis

Rule 2(d) of the Rules Governing § 2254 Cases requires that the petition in a habeas corpus
case “must substantially follow either the form appended to these rules or a form prescribed by a
local district-court rule.” This district does not have a prescribed form, so the Petition should have
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been on the standard form, but is not and, more importantly, does not contain much of the
information required by the standard form. In particular, the Petition contains no statement of any
ground for relief. The Court reads the Petition to claim that Peters’ guilty plea was not knowing,
intelligent, and voluntary because he received ineffective assistance of trial counsel (Petition, ECF
No. 1, PageID 2). In particular, Peters asserts his trial attorney did not understand Ohio Revised
Code § 2929.14(B)(1)(g) about the imposition of multiple firearm specification sentences in
certain cases. Id. at PageID 6.
The Warden claims review on the merits of this ineffective assistance of trial counsel claim
is barred by Peters’ procedural default in failing to present it to the state courts, specifically by his
failure to appeal to the Ohio Supreme Court from denial of his petition for post-conviction relief.
As noted above, Petitioner has not responded at all to this defense.
The procedural default doctrine 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 rights
claim 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.

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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.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a
claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies
are no longer available at the time the federal petition is filed because of a state procedural rule.
Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478,
485 (1986); 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).
Review of the record fully supports Respondent’s position. Peters procedurally defaulted
on his ineffective assistance of trial counsel claim by not appealing to the Ohio Supreme Court.
He has not attempted to show excusing cause and prejudice.

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Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends 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 Sixth Circuit that any appeal would be objectively frivolous and therefore should not
be permitted to proceed in forma pauperis.

January 12, 2018.
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. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. 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, 949-50 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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