Morris v. Warden Marion Correctional Institution
Filing
13
REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus: The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Norah McCann King on 9/30/2013. (er1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CRAIG MORRIS,
CASE NO. 2:12-cv-995
JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE KING
Petitioner,
v.
WARDEN, MARION CORRECTIONAL
INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 1, Respondent's Return
of Writ, Doc. No. 8, Petitioner's Reply, Doc. No. 9, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Petitioner's requests for an evidentiary hearing and for the appointment of counsel, see
Petitioner's Reply, are DENIED.
Petitioner's Motion for Judgment, Doc. No. 10, and Motion to Correct Title, Doc. No. 12,
are DENIED as moot.
Facts and Procedural History:
This is Petitioner's fourth habeas corpus action filed in this Court.1 In earlier habeas
corpus proceedings, this Court summarized the facts and procedural history of this case as
follows:
1
On November 14, 2005, this Court dismissed Petitioner's initial § 2254 petition as unexhausted. Morris v.
Warden, No. 2:05-cv-00903 (S.D. Ohio 2005). On March 24, 2008, this Court conditionally granted Petitioner's
second § 2254 petition on Petitioner's claim of ineffective assistance of counsel by reason of failure to file an appeal,
directing the State to release Petitioner or reinstate his appeal. Morris v. Warden Wolfe, No. 06-cv-00324 (S.D.
Ohio 2008). On October 18, 2010, this Court dismissed – as procedurally defaulted or without merit - Petitioner's
1
The Ohio Tenth District Court of Appeals summarized the facts
and procedural history of this case as follows:
On the evening of December 31, 2002, a group of
friends went to a club to celebrate the New Year.
They drank and danced. Sometime after midnight,
three members of the group, Latoya Crump,
Yolanda Pedraza, and Jennifer Miles, left the club.
When they got to their car in the parking lot, they
noticed the front door of one of their friend's truck
was open. Apparently, someone had broken into the
truck. The three women approached two Columbus
police officers in the parking lot to tell them about
their friend's truck. The officers were working
special duty that night at the club. The officers were
already talking to two men: appellant and his friend,
Peter Fergerson. The men were complaining to the
officers that Fergerson had been stabbed inside the
club during an altercation. When the women told
the police about the break-in, appellant commented
that stuff like that happens around here.
After the conversation with the police officers,
Pedraza called George Hill, a friend who was still
inside the club, to report that their friend's truck had
been broken into. The three women walked to
Pedraza's car, got inside, and waited for their
friends. Appellant and Fergerson followed the
women and stood outside of Pedraza's car.
Fergerson began talking to someone on his cell
phone. Pedraza heard him read her license plate
number to the person on the phone. Latoya Crump
heard him say “[s]hould we do him or should we do
the girl?” The three women remained in the car.
Eventually, the women's friends came out of the
club. This group included Keith Reynolds, whose
truck had been broken into, Hill, Wayne Crump
(Latoya's brother), Robert Briggs, Cynthia Briggs,
and Tamika Jones. The three women got out of
Pedraza's car and met the rest of the group in front
of Reynolds' truck. Reynolds left the area to talk to
the police officers. The rest of the group remained
near the truck. However, Pedraza, Latoya Crump,
third § 2254 petition, which presented only issues related to Petitioner's reinstated appeal. Morris v. Warden, Noble
Correctional Institution, No. 2:09-cv-00805 (S.D. Ohio 2010). Petitioner did not file an appeal from that judgment.
2
and Miles walked to Pedraza's car to leave. Miles
and Latoya sat inside the car while Pedraza talked
to a friend outside the car.
Moments later, appellant approached the large
group of friends in front of Reynolds' truck, pulled
out a gun, and pointed it at Wayne Crump. Latoya
Crump saw appellant hold the gun up to her
brother's head. Appellant then said something to
Wayne Crump, who turned around and saw
appellant holding the gun. Wayne immediately
grabbed appellant's hand and began wrestling with
him. After a short struggle for the gun, Crump's
hand slipped from the gun, and he turned to run
away from appellant. Appellant then opened fire.
Appellant shot four people: Wayne Crump, Robert
Briggs, Cynthia Briggs, and Tamika Jones.
Reynolds was returning to his truck with Columbus
Police Officers James Cummings, and Glenn Bray.
They were about 30-40 yards from Reynolds' truck
when they heard the shots. Officer Bray saw
appellant firing a gun in the vicinity of Reynolds'
truck. Officer Bray drew his gun and repeatedly
yelled at appellant to drop his gun. Appellant did
not immediately drop his gun but stopped shooting
and turned toward Officer Bray. After Officer Bray
fired several shots, appellant finally dropped the
gun, although he did not get down on the ground as
directed. Officer Bray approached appellant, pushed
him down to the ground, and handcuffed him.
Officer Bray did not see any other individual with a
gun that night.
Detective David Ramey of the Columbus Police
Crime Scene Search Unit arrived at the scene of the
shooting the next day. He collected three .45 caliber
casings from the parking lot, some distance from
Reynolds' truck. These casings had been fired from
Officer Bray's weapon. Detective Ramey also
collected eight 9-millimeter shell casings. He found
these shell casings in front of Reynolds' truck, close
to where the victims were shot. These shell casings
had been fired from appellant's gun.
3
A Franklin County Grand Jury indicted appellant
with five counts of felonious assault in violation of
R.C. 2903.11.FN1 Each count also contained a
firearm specification pursuant to R.C. 2941.145.
Appellant entered a not guilty plea to the charges
and proceeded to a jury trial. At trial, the witnesses
and police officers at the scene testified to the
version of events described above. Appellant and
his friend, Peter Fergerson, both testified to a
different version of events.
FN1. Counts 2 through 5 of the indictment were
charged as felonies of the second degree, while
Count 1 named Officer Bray as the victim and was,
therefore, a felony of the first degree. R.C.
2903.11(D).
Fergerson explained that he and appellant went to
the club with a number of friends. Once inside,
Fergerson got into an altercation with some other
club patrons and appellant tried to assist him. Club
staff escorted those involved in the altercation out
of the club. Fergerson approached one of the
officers outside of the club. He asked if the officers
had seen the people involved in the altercation
because one of them had tried to stab him. The
officers had not seen anyone. The officers looked
for a wound on Fergerson's back but did not see
one. Fergerson declined any medical assistance.
Fergerson left the officers and started talking on his
cell phone to a friend. He then saw a man in the
parking lot pointing at him. Fergerson assumed the
man had been involved in the fight inside the club,
so he walked over to the man and started arguing
with him. Fergerson pushed the man in the face.
The man backed up, and then Fergerson heard two
gunshots. He then heard more shots and, when he
looked back, saw appellant firing a gun.
Appellant described a similar version of events.
According to appellant, he and Fergerson
approached police officers in the parking lot after
they were kicked out of the club. Fergerson was
upset about the fight and appellant tried to calm him
down. When the officers provided no assistance,
appellant went to his car to wait for their other
4
friends to leave the club. He was sitting in his car
when he saw his friend, Fergerson, arguing with
some people. Appellant's car was parked a short
distance from Reynolds' truck. Fearing that these
were the people involved in the fight inside the
club, appellant grabbed his gun, loaded it, put it in
his pocket, and walked toward his friend. Appellant
saw Fergerson arguing face-to-face with a man.
Fergerson pushed the man in the face, and appellant
immediately attempted to pull Fergerson away. A
split second later, appellant heard two gunshots.
Appellant took out his gun and began shooting.
Appellant never denied shooting a gun that night,
but explained that he only shot in self-defense.
Appellant dropped his gun once he heard the police
officer yelling at him.
The jury rejected appellant's version of events and
found him guilty of four counts of felonious assault
and the attendant firearm specifications. The jury
acquitted him of the felonious assault charge against
Officer Bray. The trial court sentenced him
accordingly.
The day of sentencing, however, appellant's trial
counsel filed a motion for mistrial based on juror
misconduct.FN2 Appellant alleged that a juror had
attempted to bribe him in return for a not guilty
verdict. Appellant presented an affidavit from an
individual named Maceo Biggers in support of the
motion. Biggers also appeared before the trial court
and testified that a juror contacted friends of his,
Tony Harvard and a woman only identified as Nay,
and told them that the juror would find appellant not
guilty in exchange for $2,000. Harvard called
Biggers about the bribe, and Biggers put appellant
on the phone. Biggers never talked to the juror. The
trial court denied appellant's motion without
explanation.
FN2. Although captioned as a motion for mistrial,
the trial court considered it as a motion for new trial
pursuant to Crim.R. 33.
Appellant did not originally appeal his convictions.
However, he later filed a motion for leave to file a
5
delayed appeal. After this court denied appellant's
motion, a federal court granted appellant a
conditional writ of habeas corpus, directing the state
to reinstate his appeal. In response, the state filed a
motion to reopen this appeal. This court granted the
state's motion and reinstated appellant's appeal.
Appellant assigns the following errors:
First Assignment of Error: The court erroneously
overruled appellant's challenge for cause of a juror
whose views on self-defense made him biased or
otherwise unsuitable to serve as a juror within the
meaning of Criminal Rule 24(B)(9) and (14).
Second Assignment of Error: The court erroneously
sustained the prosecution's objection to appellant'[s]
excited utterance at the time he was taken into
custody that another individual had a gun.
Third Assignment of Error: Appellant received
ineffective assistance of counsel.
Fourth Assignment of Error: Appellant established
by a preponderance of the evidence that he acted in
self-defense. Consequently[, ] his convictions for
felonious assault were against the manifest weight
of the evidence.
Fifth Assignment of Error: Appellant established he
acted in self-defense by a preponderance of the
evidence. The defense having been established as a
matter of law, the jury's guilty verdicts are not
supported by legally sufficient evidence.
Sixth Assignment of Error: The court erroneously
overruled appellant's motions for acquittal pursuant
to Criminal Rule 29.
Seventh Assignment of Error: Imposition of
consecutive sentences based on judicial finding of
facts not proven to a jury beyond a reasonable doubt
or admitted by the defendant violated appellant's
Sixth Amendment rights.
State v. Morris, 2009 WL 1444089 (Ohio App. 10th Dist. May 21,
2009). The state court of appeals affirmed petitioner's convictions,
6
id., and on September 9, 2009, the Ohio Supreme court dismissed
petitioner's subsequent appeal. State v. Morris, 123 Ohio St.3d
1408, 914 N.E.2d 205 (2009).
Thereafter, on June 5, 2009, petitioner filed a pro se application to
reopen his appeal pursuant to Ohio Appellate Rule 26(B). He
asserted the ineffective assistance of appellate counsel based on his
attorney's
failure and refusal to submit the claims which I
instructed him to raise ... and his failure to raise the
grounds which the Federal Court instructed be
exhausted.
Exhibit 20 to Motion to Dismiss or Transfer. Petitioner
subsequently filed a motion to amend his Rule 26(B) application to
additionally assert:
Appellate counsel delivered deficient performance
by failing to raise a claim that appellant's sentence
is void because the trial court failed to give the
proper PRC notification pursuant to R.C. 2967.28.
See Exhibits 21, 22 to Motion to Dismiss or Transfer. On August
20, 2009, the appellate court denied petitioner's Rule 26(B)
application. Exhibit 24 to Motion to Dismiss or Transfer. Petitioner
filed a timely appeal from that decision to the Ohio Supreme
Court. Exhibits 25, 26 to Motion to Dismiss or Transfer.
Morris v. Warden, Noble Correctional Institution, No. 09-cv-00805, 2010 WL 610635 (S.D.
Ohio Feb. 18, 2010). On August 29, 2009, the state appellate court denied Petitioner's Rule
26(B) application and, on November 18, 2009, the Ohio Supreme Court dismissed Petitioner's
subsequent appeal. See Morris v. Warden, No. 09-cv-805 (S.D. Ohio 2010).
The Ohio Tenth District Court of Appeals summarized additional procedures in this case
as follows:
In 2009 and 2010, appellant requested the trial court to correct his
allegedly improper sentence. Specifically, appellant alleged that
the trial court failed to properly notify him of the mandatory term
of post-release control (“PRC”). The state agreed that the trial
court's judgment entry did not so notify appellant and that the trial
7
court should correct the deficiency. The parties disagreed,
however, on the proper remedy: appellant sought a new sentencing
hearing while the state argued that the court could only correct the
sentence to properly impose PRC.
On May 26, 2010, the trial court held a new sentencing hearing
which appellant attended via videoconference. At that hearing, the
trial court imposed the same total prison sentence as it did in 2004
and notified appellant that he was subject to a mandatory term of
three years of PRC. In the trial court's May 27, 2010 judgment
entry, the trial court also notified appellant that he was subject to a
mandatory term of three years of PRC. Appellant appealed that
judgment. This court originally reversed appellant's resentencing
based on the state's concession that appellant was denied his right
to counsel at the hearing. State v. Morris, 10th Dist. No. 10AP–
512, 2011–Ohio–5484, ¶ 6–7 (“Morris II”). The state filed an
application for reconsideration of that decision, noting that it
withdrew its concession before this court's decision. We agreed
and, on reconsideration, overruled appellant's assignments of error.
State v. Morris, 10th Dist. No. 10AP–512, 2011–Ohio–2226
(“Morris III”). We also concluded, however, that the trial court's
May 27, 2010 judgment entry improperly modified appellant's
original 2004 sentence instead of just adding the necessary PRC
language. FN1 Id. at ¶ 23. Therefore, we remanded the matter to
the trial court “with instructions to vacate the May 27, 2010
resentencing entry and issue a corrected entry that reinstates the
sentence imposed on May 24, 2004, while adding the necessary
PRC language.” Id.
FN1. Although the total prison term remained the same, the trial
court did change certain aspects of the individual sentences.
On remand, the trial court did exactly what we asked: it vacated
the May 27, 2010 sentencing entry, reinstated the original prison
sentence imposed on May 24, 2004, and added the necessary PRC
language to its sentencing entry.2
Appellant appeals and assigns the following error:
The trial court erred in imposing a sentence without a hearing and
outside the presence of the defendant.
...
2
The trial court issued a new judgment entry of sentence on January 17, 2012. Exhibit 39 to Return of Writ.
8
Appellant argues that the trial court, on remand, was required to
conduct a sentencing hearing. We disagree.
This court in Morris III made it clear what the trial court had to do
on remand: vacate the May 27, 2010 resentencing entry and issue a
corrected entry that reinstates the sentence imposed on May 24,
2004, while adding the necessary PRC language. Id. A hearing is
not part of this mandate, and the trial court had no discretion to
disregard our mandate or go beyond the scope of that mandate.
State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 662 (1995);
State ex rel. Sharif v. McDonnell, 91 Ohio St.3d 46, 47 (2001). The
“law of the case” doctrine required the trial court to accept and
apply all legal rulings of this court in all subsequent proceedings.
Id.; Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). Thus, the trial court
cannot be faulted for following the instructions of this court on
remand.
Moreover, the trial court properly notified appellant of his
mandatory PRC term at the May 26, 2010 sentencing hearing. The
only flaw left for the trial court to correct was the notification in its
sentencing entry. A defendant is not entitled to a resentencing
hearing under these circumstances anyway. State v. Qualls, 131
Ohio St.3d 499, 2012–Ohio–1111, ¶ 23–24, 30. We overrule
appellant's assignment of error.
State v. Morris, No. 12AP-127, 2013 WL 614543 (Ohio App. 10th Dist. Feb. 19, 2013). On
February 19, 2013, the state appellate court affirmed the judgment of the trial court.
Id.
Petitioner did not apparently file an appeal to the Ohio Supreme Court. Meanwhile, however, on
December 9, 2011, Petitioner filed another application to reopen his appeal pursuant to Ohio
Appellate Rule 26(B). Exhibit 33 to Return of Writ. The state appellate court denied that
application as untimely and improper, concluding that the application was a challenge the
effectiveness of appellate counsel during the reinstated appeal ordered by this Court. Exhibits
34, 35 to Return of Writ. On July 25, 2012, the Ohio Supreme Court dismissed Petitioner's
subsequent appeal. Exhibits 37, 38 to Return of Writ.
On October 26, 2012, Petitioner filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. §2254. He asserts the following claims, recited verbatim:
9
1. The trial court ignored, modified, and/or changed mandate law
thereby violating not only their oath of office, but due process law.
2. The trial court ignored, modified, and/or changed mandate law
thereby violating not only their oath of office, but violating equal
protection of the law.
3. Counsel at trial for re-sentencing, and counsel appointed for
appeal have both violated the guarantee to effective assistance of
counsel by failing to protect both due process rights and the equal
protection of laws.
4. The trial court and/or appeal court on direct appeal review
denied my access to the courts.
5. Defendant was denied his right to direct appeal.
Respondent argues that Petitioner's claims are moot, fail to present issues appropriate for federal
habeas corpus relief, have been waived, or are without merit.
Successive Petition:
Although Respondent does not raise the issue, this Court must first determine whether it
has the jurisdiction to consider this action – Petitioner’s fourth since his original conviction in
the Franklin County Court of Common Pleas. See 28 U.S.C. § 2244(b). However, not all
subsequent petitions relating to the same conviction or sentence are considered successive.
Stewart v. Martinez–Villareal, 523 U.S. 637 (1998). In the petition presently before the Court,
Petitioner challenges only his re-sentencing proceedings. Specifically, Petitioner claims that he
was entitled to a de novo sentencing hearing, that he was denied the effective assistance of
counsel at re-sentencing and on the appeal from his re-sentencing, and that he was denied the
right to appeal that re-sentencing. Thus, all of the claims currently before the Court relate to
Petitioner’s re-sentencing and could not have been raised in any of his earlier petitions. See
Magwood v. Patterson, 561 U.S. --, 130 S.Ct. 2788 (2010)(numerically second habeas corpus
petition challenging re-sentencing that occurred after the conditional grant of a petition for a writ
10
of habeas corpus did not require the authorization of the Court of Appeals prior to consideration
by the District Court). Under these circumstances, this action is not a successive petition within
the meaning of 28 U.S.C. § 2244(b) and this Court may consider Petitioner’s current claims
without prior authorization of the Court of Appeals.
Claims One and Two:
Claims One and Two address Petitioner's January 2012 re-sentencing. Petitioner appears
to argue that, pursuant to the holding of the Ohio Supreme Court in State v. Singleton, 124 Ohio
St. 3d 173 (2009),3 he was entitled to a de novo sentencing hearing - and the opportunity raise
yet additional claims - and that the state courts’ refusal to provide such a hearing violated
Singleton’s mandate and denied Petitioner due process and equal protection.
These claims raise only an issue of state law and therefore fail to present a basis for
federal habeas corpus relief. A federal court may review a state prisoner's habeas petition only
on the ground that the challenged confinement is in violation of the Constitution, laws or treaties
of the United States. 18 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus
“on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith
v.. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an
additional state appellate court reviewing state courts' decisions on state law or procedure. Allen
v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). “ ‘[F]ederal courts must defer to a state court's
interpretation of its own rules of evidence and procedure’ “ in considering a habeas petition. Id.
(quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir.1985)). It is only where the error
3
In Singleton, the Ohio Supreme Court held that, “[f]or criminal sentences imposed prior to July 11, 2006, in which
a trial court failed to properly impose postrelease control, trial courts shall conduct a de novo sentencing hearing in
accordance with decisions of the Supreme Court of Ohio.” Id., syllabus, ¶ 1. In State v. Fischer, 128 Ohio St. 3d 92
(2010), however, the Ohio Supreme Court later held that “[a] sentence that does not include the statutorily mandated
term of postrelease control is void . . . [but] [t]he new sentencing hearing to which an offender is entitled . . . is
limited to proper imposition of postrelease control.” Id., syllabus, ¶¶ 1, 2.
11
resulted in the denial of fundamental fairness that federal habeas relief will be granted. Cooper v.
Sowders, 837 F.2d 284, 286 (6th Cir.1988).
Claim Three:
Claim Three raises somewhat similar issues: Petitioner alleges that he was denied the
effective assistance of counsel, both at re-sentencing and on the appeal from that re-sentencing,
because his attorneys failed to raise "issues . . . properly, pursuant to mandate, raised at resentencing." Petition. This claim is without merit.
A claim of ineffective assistance of counsel requires the following showing:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that deficient performance prejudiced the
defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). An error by counsel, even if professionally
unreasonable, does not warrant habeas relief if the result of the proceedings would not have been
different. Id. at 694.
The state appellate court addressed this claim as follows:
The arguments supporting [this claim] presuppose the idea that he
was entitled to a de novo resentencing hearing. . . . [T]the scope of
the resentencing hearing was limited to the correct imposition of
PRC. The extent of this appeal and our review is equally limited.
Fischer [128 Ohio St. 3d] at 99. According to the transcript from
the hearing, appellant had the opportunity to confer with counsel
before the hearing commenced. Counsel represented appellant with
respect to P[ost]R[elease]C[ontrol]. Appellant fails to argue to the
contrary. Additionally, appellant addressed the court on his own
behalf in several other regards. Moreover, appellant suffered no
prejudice by any purported errors his counsel may have made
during the resentencing hearing.
12
State v. Morris, 2011 WL 1782201, at *4-5. The state appellate court nevertheless remanded the
matter to the trial court, concluding that the trial court had improperly modified Petitioner's
sentence:
[I]n its May 27, 2010 resentencing entry, the trial court improperly
modified appellant's original sentence. It had no authority to do so
and instead should have imposed the same sentence that was
imposed in the May 24, 2004 entry, along with the necessary PRC
language. See State v. Robb, 1st Dist. No. C–100678, 2011–Ohio–
4647, ¶ 6. We therefore remand this matter with instructions to
vacate the May 27, 2010 resentencing entry and issue a corrected
entry that reinstates the sentence imposed on May 24, 2004, while
adding the necessary PRC language.
State v. Morris, 2011 WL 1782201, at *10. Petitioner filed a timely notice of appeal from this
decision to the Ohio Supreme Court, which dismissed that appeal. State v. Morris, 132 Ohio
St.3d 1485 (2012). After the trial court corrected its judgment entry of sentence, Petitioner
appealed that judgment. However, he did not raise a claim of ineffective assistance of counsel;
as noted supra, Petitioner argued only that the trial court had erred in imposing sentence without
a hearing and outside his presence. See State v. Morris, 2013 WL 614543. The state appellate
court affirmed the trial court's judgment and, as noted supra, Petitioner apparently did not file an
appeal from that judgment.
Respondent suggests that Petitioner's claim of ineffective assistance of counsel in this
regard might be unexhausted because Petitioner may still pursue a delayed appeal to the Ohio
Supreme Court. Return of Writ, PageID #44, n.6. This Court disagrees. Petitioner raised a claim
of ineffective assistance of counsel in the December 9, 2011 application to reopen his appeal
pursuant to Ohio Appellate Rule 26(B), Exhibit 33 to Return of Writ, and presented the same
claim to the Ohio Supreme Court, Exhibits 37, 38 to Return of Writ.
13
However, Petitioner’s claim may be procedurally defaulted in light of the dismissal of his
December 9, 2011 Rule 26(B) application as untimely and improperly filed:
[I]n his December 9, 2011 application for reopening, defendant
asks this court to reopen his appeal ("second application"). As is
clear, however, defendant is not requesting a reopening with
respect to post-release control. Rather, in his second application,
defendant presents the same arguments he raised in his first
application. Specifically, he argues: (1) that his sentence is
contrary to law because it violates the mandate of Blakely; (2) that
the jury was improperly influenced and biased because of an
alleged bribery attempt; (3) that he was denied a fair trial; and (4)
that there was insufficient evidence supporting his convictions.
Based upon the arguments presented in his second application,
defendant is clearly asking us to reopen case No. 05AP-1139,
which we resolved on May 29, 2009.
However, more than 90 days passed between May 29, 2009 and
December 9, 2011, the date upon which defendant filed his second
application. Defendant has failed to show good cause to excuse his
untimely application. Indeed, nowhere in defendant's application
is timeliness even mentioned. We also note that defendant's
second application exceeds the page limitation for such filings.
We reject defendant's second application based upon these
deficiencies. More importantly, however, we reject defendant's
second application because we have already considered and
rejected these same substantive arguments during our review of
defendant's direct appeal. See Morris I and Morris II.
Based upon the foregoing, we deny defendant's December 9, 2011
application for reopening.
Exhibit 34 to Return of Writ.
A habeas petitioner is required to fairly present his federal constitutional claims to the
highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If, because of a procedural
default, a 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, 447 U.S. 478,
14
485 (1986); Engle v. Issac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87
(1977).
Here, Petitioner failed to comply with state court rules by failing to file his second Rule
26(B) application within the required ninety day period. The state appellate court explicitly
enforced this procedural rule by denying Petitioner’s second Rule 26(B) application as untimely.
The United States Court of Appeals for the Sixth Circuit has held that this time limit constitutes
an adequate and independent state ground upon which to foreclose review of a petitioner's
federal claims. See Wilson v. Hurley, 382 Fed.Appx. 471, 476, unpublished, 2010 WL 2587942
(6th Cir. June 28, 2010). Further, Petitioner has failed to establish cause for this procedural
default. See generally Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986). Finally, this is not “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).
However, the Court also concludes that Claim Three is without merit.
In rejecting Petitioner's final appeal from his re-sentencing, the state appellate court
reiterated that Petitioner had no right to address any issues aside from the imposition of post
release control:
This court in Morris III made it clear what the trial court had to do
on remand: vacate the May 27, 2010 resentencing entry and issue a
corrected entry that reinstates the sentence imposed on May 24,
2004, while adding the necessary PRC language. Id. A hearing is
not part of this mandate, and the trial court had no discretion to
disregard our mandate or go beyond the scope of that mandate.
State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 662 (1995);
State ex rel. Sharif v. McDonnell, 91 Ohio St.3d 46, 47 (2001). The
“law of the case” doctrine required the trial court to accept and
apply all legal rulings of this court in all subsequent proceedings.
Id.; Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). Thus, the trial
15
court cannot be faulted for following the instructions of this court
on remand.
Moreover, the trial court properly notified appellant of his
mandatory PRC term at the May 26, 2010 sentencing hearing. The
only flaw left for the trial court to correct was the notification in its
sentencing entry. A defendant is not entitled to a resentencing
hearing under these circumstances anyway. State v. Qualls, 131
Ohio St.3d 499, 2012–Ohio–1111, ¶ 23–24, 30. We overrule
appellant's assignment of error.
State v. Morris, 2013 WL 614543, at *2.
Because the state appellate court held - twice - that Petitioner had no right under Ohio
law to raise any issue at his re-sentencing hearing apart from the imposition of post release
control, Petitioner cannot establish that his attorneys’ failure to raise such issues - either at that
hearing or on appeal - was constitutionally ineffective within the Strickland standard.
Claims Four and Five:
In Claims Four and Five, Petitioner alleges that he was denied the right to appeal and the
right of access to the courts, thereby resulting in a manifest miscarriage of justice and cruel and
unusual punishment in violation of the Eighth Amendment, because the courts of Ohio denied
him a de novo sentencing hearing. These claims are without merit.
Petitioner was neither denied his right to appeal nor the right of access to the Courts. As
attested by the lengthy procedural history recounted supra, Petitioner pursued numerous state
court proceedings and appeals. The fact that Petitioner did not prevail on every issue or claim
asserted by him in those proceedings is not dispositive; the Constitution does not guarantee a
favorable outcome.
WHEREUPON, the Magistrate Judge RECOMMENDS that this action be
DISMISSED.
16
Petitioner's request for an evidentiary hearing and for the appointment of counsel, see
Petitioner's Reply, are 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
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/ Norah McCann King
Norah McCann King
United States Magistrate Judge
September 30, 2013
17
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