Lumpkin v. Warden, Marion Correctional Institution

Filing 16

REPORT AND RECOMMENDATIONS re 5 Petition for Writ of Habeas Corpus filed by Troy Lumpkin. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for a stay of proceeedings or, alternatively, for a dismissal w/o prejudice is DENIED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 10/10/2013. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TROY LUMPKIN,
CASE NO. 2:11-CV-962
JUDGE FROST
MAGISTRATE JUDGE ABEL

Petitioner,
v.
JASON BUNTING, WARDEN,
Respondent.

REPORT AND RECOMMENDATION
Petitioner Troy Lumpkin, a state prisoner, brings this action for a writ of habeas corpus
under 28 U.S.C. § 2254. This matter is before the Magistrate Judge on the petition,
Respondent’s Return of Writ, Petitioner’s Traverse, and the exhibits of the parties.
This case involves Lumpkin's convictions after a jury trial in the Licking County Court of
Common Pleas for trafficking in crack cocaine in the vicinity of a juvenile, trafficking in crack
cocaine, possession of crack cocaine, possession of marijuana, possession of drug paraphernalia,
and having weapons under disability, with two firearm specifications and a forfeiture
specification for the money.1 The Ohio Court of Appeals affirmed the judgment of the trial court
on direct appeal; however, Petitioner did not timely appeal to the Ohio Supreme Court, and the
Ohio Supreme Court denied his motion for delayed appeal. Additionally, Petitioner raised solely
one claim for relief in the state appellate court. He also filed a motion for reconsideration in the
state appellate court, a petition for post conviction relief, and a request for a hearing on the
merger of sentences, all without success. For the reasons that follow, the Magistrate Judge

1

The charges on having a weapon while under disability, possession of marijuana, and the forfeiture specification
were tried to the court.

1

concludes that all of Petitioner Lumpkin’s claims are procedurally defaulted, and therefore

RECOMMENDS that this action be DISMISSED. Petitioner’s request for a stay of
proceedings, or, alternatively, for a dismissal without prejudice, is DENIED.
Facts and Procedural History:
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
this case as follows:
On March 18, 2009, officers from the Central Ohio Drug Task
Force sent a confidential informant to purchase crack cocaine from
appellant in a controlled buy at 8 West Postal Avenue in Newark,
Ohio. The informant called appellant and an agreement was made
for the purchase of two $100.00 rocks of crack cocaine. The
informant was wired with a recorder and given $200.00 in
recorded buy money in order to make the purchase.
The informant went to 8 West Postal Avenue, where he purchased
crack cocaine from appellant. At the time of the purchase, the
police detective monitoring the transaction saw a juvenile on the
porch next door, approximately 30 feet from the scene of the drug
transaction.
Officers obtained a search warrant for 8 West Postal Avenue. The
informant then made a second call to appellant to arrange to buy
more crack cocaine. The purpose of the call was to ensure that
someone was present in the residence when the warrant was
executed. The informant arranged to buy $150.00 of crack from
appellant. Officers then searched the residence, where they found
crack cocaine, a loaded .45 caliber semiautomatic handgun and a
loaded 9 mm revolver under the couch, a scale and razor blade, a
jar full of cash and marijuana. Officers found $1,344.00 in cash in
appellant's pockets, including the $200.00 of recorded buy money
from the earlier transaction with the confidential informant.
Appellant was indicted by the Licking County Grand Jury with
trafficking in crack cocaine in the vicinity of a juvenile, trafficking
in crack cocaine, possession of crack cocaine, possession of
marijuana, possession of drug paraphernalia, and having weapons
under disability, with two firearm specifications and a forfeiture
specification for the money.

2

Appellant entered a plea of not guilty to the charges on April 7,
2009. His original trial counsel filed a motion to withdraw on July
16, 2009, which was granted the same day, and new counsel was
appointed on July 20, 2009. On August 17, 2009, the day before
trial, counsel filed a motion to continue. The motion alleged in
pertinent part:
“In recent weeks, Defense Counsel has been to see the Defendant
several times at the Licking County Jail to review discovery and
trial strategy.
“The Defendant claims to have additional information related to
witnesses in this case that he has requested Counsel investigate.”
The court overruled the motion, finding that the case had been
scheduled for trial for the third time, the most recent date with
more than a month's notice while appellant was represented by his
current counsel.
Appellant waived jury trial on the weapons under disability charge
and the forfeiture specification. Those charges, along with the
possession of marijuana charge which is a minor misdemeanor,
were tried to the court, while the remaining charges were tried to a
jury. He was convicted on all charges and sentenced to a total term
of incarceration of 14 1/2 years. He assigns a single error on
appeal:
“THE TRIAL COURT COMMITTED HARMFUL ERROR AND
ABUSED ITS DISCRETION IN DENYING THE APPELLANT'S
REQUEST FOR A CONTINUANCE OF THE JURY TRIAL
HEREIN.”
State v. Lumpkin, No. 2009 CA 00109, 2010 WL 2643303, at *1-2 (Ohio App. 5th Dist. June 28,
2010). On June 28, 2010, the appellate court affirmed the judgment of the trial court.2 Id.
Petitioner did not file a timely appeal to the Ohio Supreme Court. On September 13, 2010, he
filed a motion for delayed appeal. Exhibit 9 to Return of Writ. On October 27, 2010, the Ohio

2

On May 20, 2011, the Ohio Court of Appeals denied Petitioner’s motion for reconsideration. Exhibits 11, 12 to
Return of Writ.

3

Supreme Court denied Petitioner’s motion for delayed appeal. State v. Lumpkin, 126 Ohio St.3d
1615 (2010).
On December 10, 2010, Petitioner filed a motion for re-sentencing, which the trial court
denied on January 4, 2011.
Petitioner also pursued post conviction relief in the state trial court on December 10,
2010. He asserted that he had newly discovered evidence, i.e., an eyewitness, establishing his
actual innocence and that he had been denied effective assistance of counsel because his attorney
failed to investigate and failed to subpoena a witness who would have established his innocence
of the charges. See Exhibit 18 to Return of Writ. In a January 10, 2011judgment entry, the trial
court ordered Petitioner’s post conviction petition to be stricken for failing to include a certificate
of service as required by Ohio Criminal Rules. See Exhibit 19 to Return of Writ.
Petitioner additionally filed an August 15, 2011 motion requesting a “merger hearing” to
correct an illegal sentence. Exhibit 20 to Return of Writ. In a judgment entry filed February 9,
2012, the trial court denied Petitioner’s motion, concluding that it no longer had jurisdiction over
the case, since Petitioner’s conviction and sentence had already been affirmed on appeal. Exhibit
23 to Return of Writ.
On December 5, 2011, Petitioner filed this pro se federal petition for a writ of habeas
corpus under 28 U.S.C. § 2254. He asserts that he is being held in violation of the Constitution
of the United States as follows:
1.

Petitioner was denied due process when the trial court failed to
allow Petitioner’s appellate counsel additional time to prepare
for Petitioner’s case in violation of defendant’s due process
right as guaranteed by the United States Constitution.

4

2.

Petitioner was denied the right to a fair trial in this case,
Petitioner was not allowed to call witnesses at trial. This
constituted a violation of Petitioner’s right to a fair trial.
Petitioner was denied right to equal protection in this case [] as
the trial court failed to allow Petitioner’s counsel to call
witnesses at trial. The witnesses that would have been called
were witnesses that were in the house at the time Petitioner’s
crime was committed and would have served as witnesses at
Petitioner’s trial.

3.

Denial of effective assistance of counsel at trial.

4.

Conviction obtained by a violation of the protection against
double jeopardy.

It is the position of the Respondent that all of Petitioner’s claims are procedurally defaulted.
Procedural Default:
In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state criminal defendant with federal constitutional claims is required fairly to present
those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he
fails to do so, but still has an avenue open to him by which he may present the claims, his
petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459
U.S. 4, 6 (1982) (per curiam; Picard v. Connor, 404 U.S. 270, 275–76 (1971). If, because of a
procedural default, the petitioner can no longer present his claims to a state court, he has also
waived them for purposes of federal habeas review unless he can demonstrate cause for the
procedural default and actual prejudice resulting from the alleged constitutional error. Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v.
Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a
federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule.

5

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “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.” Id. Second, the court must determine whether the state courts actually
enforced the state procedural sanction. Id. Third, it must be decided 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. Id. Finally, if the court has determined that a state
procedural rule was not complied with and that the rule was an adequate and independent state
ground, then the petitioner is required to demonstrate that there was cause for him not to follow
the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id.
This “cause and prejudice” analysis also applies to failure to raise or preserve issues for review at
the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).
Petitioner asserts he was denied a fair trial because the trial court denied defense
counsel’s motion for a continuance (claim one); because he was unable to call defense witnesses
based on the trial court’s refusal to grant a defense continuance (claim two); he was denied
effective assistance of counsel based on his attorney’s failure to request a merger hearing, as his
convictions constituted allied offenses of similar import (claim three); and that his convictions
violate the Double Jeopardy Clause (claim four). The sole claim Petitioner raised on direct
appeal, however, was that regarding the trial court’s denial of his request for a continuance. The
remainder of Petitioner’s claims have never been presented to the state courts. Further, Petitioner
did not timely appeal the Ohio Court of Appeal's decision denying his direct appeal to the Ohio
Supreme Court; and the Ohio Supreme Court denied his later filed motion for a delayed appeal.
The Ohio Supreme Court's denial of a motion for delayed appeal constitutes a procedural
default of the claims raised therein. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). As to
6

those claims which should have been raised on direct appeal, but were not, Petitioner may now
no longer present them to the state courts because they are barred by Ohio's doctrine of res
judicata, that provides that claims that could have been raised on direct appeal, but were not,
may not be considered in ponstconviction or other collateral proceedings. See State v. Cole, 2
Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d
175 (1967).
Ohio's res judicata rule is adequate and independent under the third part of the Maupin
test. To be “independent,” the procedural rule at issue, as well as the state court's reliance thereon,
must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732–33, (1991).
To be “adequate,” the state procedural rule must be firmly established and regularly followed by
the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established and
regularly followed state practice’ may be interposed by a State to prevent subsequent review by
this Court of a federal constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S.
341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v.
Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d
521, 561 (S.D. Ohio 1998).
The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry
rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d
754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v.

Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir.
2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently
refused, in reliance on the doctrine of res judicata, to review the merits of claims because they

7

are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at
16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring
that claims are adjudicated at the earliest possible opportunity. With respect to the independence
prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law.
Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is
an adequate and independent ground for denying relief. Accordingly, the Court concludes that
Petitioner has waived all of the grounds he now presents for federal habeas corpus relief.
As cause for his procedural defaults, Petitioner asserts denial of the effective assistance of
appellate counsel. He complains that his appellate attorney improperly failed to raise these
issues on appeal, even though trial counsel preserved the issue of the trial court’s refusal to
merge the offenses for sentencing purposes. See Petitioner’s Reply, Doc. No. 15. Additionally,
Petitioner asserts, as cause for his procedural defaults, his pro se incarcerated status. Id. He
appears to contend that he has preserved his claim of ineffective assistance of counsel by raising
the issue in his motion for reconsideration under Ohio Appellate Rule 26(A). Finally, Petitioner
requests the Court to stay proceedings pending his exhaustion of state remedies on his claim that
the trial court illegally imposed consecutive sentences and that his sentence violates the Double
Jeopardy Clause in view of the Ohio Supreme Court’s December 29, 2010, decision in State v.
Johnson, 128 Ohio St.3d 153 (2010).3
Petitioner’s arguments are not persuasive.
“ ‘[C]ause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed
to him[;] ... some objective factor external to the defense [that]
3

In Johnson, the Ohio Supreme Court held that the conduct of an accused must be considered when determining
whether two offenses are allied offenses of similar import subject to merger (for sentencing purposes) under O.R.C.
§ 2941.25. At the time of Petitioner's original sentencing, controlling Ohio precedent interpreted O.R.C. § 2941.25
to require only that the statutorily defined elements of offenses be compared “in the abstract” in order to determine
whether they are allied, and therefore merged, for sentencing purposes. See State v. Rance, 85 Ohio St.3d 632, 710
(Ohio 1999).

8

impeded ... efforts to comply with the State's procedural rule.”
Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). Petitioner's pro se status or “ignorance of
the law and procedural requirements for filing a[n] ... appeal is insufficient to establish cause to
excuse his procedural default.” See Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004)(citing
Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995)).
Moreover, while the constitutionally ineffective assistance of counsel may constitute
cause for a procedural default, Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray
v. Carrier, 477 U.S. 478, 488–89 (1986)), the ineffective assistance of counsel cannot constitute
cause where, as here, the allegation of the ineffective assistance of appellate counsel likewise is
procedurally defaulted. Petitioner did not preserve his claim of ineffective assistance of counsel
for federal habeas review by attempting to raise the claim in his motion for reconsideration of the
appellate court’s denial of his direct appeal. The appellate court denied the motion, which was
filed more than nine months late, as untimely. Additionally, the appellate court noted that
Petitioner’s claim of ineffective assistance of appellate counsel properly would be raised in an
application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), but that such a motion
also would be untimely, and Petitioner had “made no effort. . . to demonstrate good cause” for his
late filing. See Exhibit 12 to Return of Writ.
Beyond the four-part Maupin analysis, this Court is required to consider whether this is
“an extraordinary case, where a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley,
505 U.S. 333 (1992).
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the gateway

9

and argue the merits of his underlying claims.” Schlup, 513 U.S. at
316, 115 S.Ct. 851. Thus, the threshold inquiry is whether “new
facts raise[ ] sufficient doubt about [the petitioner's] guilt to
undermine confidence in the result of the trial.” Id. at 317, 115
S.Ct. 851. To establish actual innocence, “a petitioner must show
that it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.” Id. at 327, 115
S.Ct. 851. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828
(1998). “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. The
Court counseled however, that the actual innocence exception
should “remain rare” and “only be applied in the ‘extraordinary
case.’ ” Id. at 321, 115 S.Ct. 851.
Souter v. Jones, 395 F.3d 577, 590-91 (6th Cir. 2005)(footnote omitted). Petitioner has failed to
meet this standard here. Consequently, Petitioner has procedurally defaulted all of the claims he
now presents for relief.
Petitioner nonetheless requests a stay of proceedings or a dismissal of this action without
prejudice so that he can file an appeal of the trial court’s February 9, 2012, denial of his request
for a “merger hearing” to correct his allegedly illegal sentence and thereby exhaust state court
remedies as to his claims. In support of this request, Petitioner has attached a “Notification of
Filing of Record” in the Licking County Court of Appeals dated April 2, 2012 (indicating that the
record had been transmitted to the Court of Appeals) and states that he is in the process of filing
his appellate brief. See Exhibit to Petitioner’s Reply, PageID #692.

10

Petitioner’s request for a stay, or alternatively, for a dismissal without prejudice to refiling is DENIED. As previously discussed, Petitioner’s claim that his sentence was illegally
imposed or that it violates the Double Jeopardy Clause should have been raised on direct appeal,
but was not, and therefore is now barred from review under Ohio’s doctrine of res judicata. See
State v. Cole, 2 Ohio St.3d at 112, 443 N.E.2d 169; State v. Ishmail, 67 Ohio St.2d at 16.
Further, Petitioner made his request for a stay in April 2012, approximately one and one half
years ago. He has not submitted any update regarding the status of his appeal, and presumably
his appeal of the trial court’s denial of his motion for a merger hearing has now concluded. In
any event, the record fails to demonstrate that Petitioner can meet the requirements set forth in
Rhines v. Weber, 544 U.S. 269, 277-78 (2005)( stay and abeyance only appropriate where
Petitioner has “good cause” for failing to exhaust state remedies and his claims are potentially
meritorious).
WHEREUPON, the Magistrate Judge RECOMMENDS that this action be
DISMISSED. Petitioner’s request for a stay of proceedings or, alternatively, for a dismissal
without prejudice, is DENIED.
Procedure on Objections:
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further

11

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
s/Mark R. Abel
United States Magistrate Judge

12