Deresse v. Warden Ross Correctional Institution

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 8-8-11. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAWITT N. DERESSE,
Petitioner,
vs.

Civil Action 2:10-CV-1083
Judge Smith
Magistrate Judge King

WARDEN, ROSS CORRECTIONAL
INSTITUTION,
Respondent.

OPINION AND ORDER

On

May

20,

2011,

the

United

States

Magistrate

Judge

recommended that respondent’s motion to dismiss be granted and that
petitioner’s motion to excuse his procedural default be denied.
and Recommendation, Doc. No. 7.

Report

This matter is now before the Court on

petitioner’s objection to that recommendation. Objection, Doc. No. 11.
Pursuant to the provisions of 28 U.S.C. §636(b); Fed. R. Civ. P. 72(b),
the Court will consider the matter de novo.
This is a habeas corpus action under the provisions of 28
U.S.C. §2254, in which petitioner challenges his convictions, based on
his guilty pleas, on drug-related charges.

Petitioner presented his

challenges to the state court of appeals in a delayed direct appeal.
After his conviction was affirmed on appeal, petitioner, acting without
the assistance of counsel, attempted to file a timely appeal to the Ohio
Supreme Court.

His filing was incomplete, however, and the Clerk of the

Ohio Supreme Court returned that filing to him.

Petitioner explains

that he mailed the missing documents separately to the Ohio Supreme
Court but, because his earlier attempted filing had been returned to him
unfiled, those documents were also returned to petitioner by the Clerk
of the Ohio Supreme Court.1
The respondent filed a motion to dismiss the petition based
on procedural default, Doc. No. 6.

Acknowledging that his attempted

appeal to the Ohio Supreme Court was defective, petitioner asked that
the Court excuse his procedural default, Doc. No. 5.
The

Magistrate

Judge

recommended

that

the

petition

dismissed as procedurally defaulted, reasoning as follows:
Petitioner argues that the Clerk of the Ohio
Supreme Court should not have returned his first,
incomplete, filing to him. Rather, petitioner
argues, the clerk should have filed the incomplete
notice of appeal and permitted petitioner to later
remedy the defect. “A technicality should not bar
review of this petition.” Motion to Excuse the
Procedural Default, p. 6.
This Court concludes that it was not the
Clerk of the Ohio Supreme Court that caused
petitioner’s procedural default; rather, his
default was a consequence of petitioner’s own
failure to follow the express directions given to
him by the clerk. In the clerk’s January 27,
2010 letter to petitioner, the clerk returned
petitioner’s notice of appeal, unfiled, and
provided to petitioner this advice:
In order to timely appeal a December 17,
2009 court of appeals decision, your notice
of appeal, corrected memorandum in support
of jurisdiction, and affidavit of indigency
are due in the Clerk’s Office no later than
February 1, 2010.
Should this deadline
pass, please see the provision for delayed
appeal under Rule 2.2(A)(4) of the enclosed
copy of the Rules of Practice.
Exhibit A, attached to Motion to Excuse Procedural

1

Petitioner’s subsequent motion for delayed appeal was denied by the
Ohio Supreme Court.

2

be

Default. Petitioner simply did not follow these
directions. Nothing in the record indicates that
any external factor impeded Petitioner’s ability
to file a proper, timely appeal to the Ohio
Supreme Court.
Petitioner’s default in this
regard is therefore attributable only to him.
Report and Recommendation, pp. 4-5.
In his objection, petitioner presents the same argument
presented

to

and

rejected

by

the

Magistrate

Judge,

with

one

modification. Petitioner now asserts that the Clerk of the Ohio Supreme
Court should have held his original, admittedly defective, filing in
“abeyance”

pending

his

submission

of

the

missing

documents.

Particularly is this so, petitioner contends, in light of the fact that
the deficiency in his original filing is a common deficiency.
This Court agrees with the Magistrate Judge that petitioner’s
claims were procedurally defaulted.

The procedural rules governing the

filing of direct appeals with the Ohio Supreme Court are adequate and
independent rules with which a habeas corpus petitioner must comply.
Although petitioner may disagree with the wisdom of those rules, the
fact remains that petitioner failed to comply with those rules. That
failure necessarily leads to the conclusion that his claims have been
procedurally defaulted for purposes of federal habeas corpus review.
See Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004)(a habeas corpus claim
is procedurally defaulted where that claim has not been presented to the
state

courts

in

accordance

with

the

state’s

procedural

rules).

Moreover, petitioner has failed to demonstrate cause for his default and
actual prejudice; he has likewise failed to demonstrate that enforcing
this procedural default will result in a fundamental miscarriage of
justice.

Under these circumstances, the Court cannot consider the

merits of petitioner’s claims.
3

Petitioner’s Objection, Doc. No. 11, is DENIED.
and Recommendation, Doc. No. 7, is ADOPTED and AFFIRMED.

The Report
Petitioner’s

motion to excuse his procedural default, Doc. No. 5, is DENIED.
Respondent’s motion to dismiss, Doc. No. 6, is GRANTED.
The

claims

asserted

in

this

action

are

DISMISSED

procedurally defaulted.
The Clerk shall enter FINAL JUDGMENT.

s/George C. Smith
George C. Smith, Judge
United States District Court

4

as