Cottrell v. Warden Chillicothe Correctional Institution
Filing
13
OPINION AND ORDER adopting Report and Recommendations re 8 Report and Recommendations. This case is hereby DISMISSED. Signed by Judge James L Graham on 12/8/2014. (ds)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURTS
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL COTTRELL,
CASE NO. 2:13-CV-162
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers
Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
On October 2, 2014, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed. ECF 8. Petitioner has filed an Objection to the Magistrate Judge’s Report and
Recommendation. ECF 12. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner’s Objection, ECF 12, is OVERRULED. The
Report and Recommendation is ADOPTED and AFFIRMED.
This case is hereby
DISMISSED.
Petitioner’s request for a certificate of appealability is DENIED.
Petitioner asserts that he was denied effective assistance of counsel and that the trial court
improperly imposed consecutive terms of incarceration in violation of the Double Jeopardy
Clause. The Magistrate Judge recommended the dismissal of these claims as procedurally
defaulted. Petitioner objects to that recommendation.
Petitioner argues that he preserved his claim of ineffective assistance of trial counsel for
review by filing a motion for a delayed appeal with the Ohio Supreme Court which included a
memorandum in support of jurisdiction. He complains that he was without counsel to assist him
1
in the filing of an appeal with the Ohio Supreme Court. He contends that he exercised diligence
in pursuing his claims and has been denied access to the Ohio courts. He argues that it would be
an exercise in futility to present a claim of ineffective assistance of counsel to the state courts,
because such a claim is routinely denied by the state courts. He asserts that he has established
cause and actual prejudice for his procedural defaults based on the denial of the effective
assistance of counsel. He complains that the Magistrate Judge failed to address the merits of his
claims and asserts that he is actually innocent of the charges against him.
The Ohio Supreme Court’s denial of Petitioner’s motion for a delayed appeal does not
constitute a ruling on the merits or preserve his claim of ineffective assistance of counsel for
federal habeas corpus review. See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).
Petitioner cannot establish cause for his procedural default based on a claim of ineffective
assistance of counsel, as he had no right to the assistance of counsel in the Ohio Supreme Court.
A claim of ineffective assistance of counsel may constitute cause for a procedural default “only
at a stage of the proceedings where a petitioner has a Sixth Amendment right to counsel. . . . It
does not extend to discretionary appeals or collateral post-conviction proceedings.” Mapp v.
Ohio, No. 2:12–cv–1039, 2013 WL 4458838, at *2 (S.D. Ohio Aug. 20, 2013) (quoting Wilson v.
Hurley, 382 F. App'x. 471, 478 (6th Cir. 2010)); see also Graggs v. Warden, Lebanon Corr.
Inst., No. 2:12-cv-190, 2013 WL 2404076, at *14 (S.D. Ohio May 30, 2013)(same). Petitioner
had no Sixth Amendment right to counsel in connection with the discretionary appeal to the Ohio
Supreme Court. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed
counsel extends to the first appeal of right, and no further.”); Ross v. Moffitt, 417 U.S. 600, 610–
12 (1974) (right to appellate counsel does not extend beyond the first appeal as of right to
2
discretionary appeals to the state's highest court or to petitions for review by the United States
Supreme Court).
Petitioner likewise has failed to establish cause for his failure to present his claims that
the trial court improperly imposed consecutive terms of incarceration or that his sentence
violates the Double Jeopardy Clause to the Ohio courts.
“‘[C]ause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed
to him[; it must be] some objective factor external to the defense
[that] impeded ... efforts to comply with the State's procedural
rule.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991).
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003); see also Lundgren v. Mitchell, 440 F.3d
754, 763–64 (6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). “[I]gnorance
of the law and procedural requirements for filing a timely notice of appeal is insufficient to
establish cause to excuse [a] procedural default.” Bleigh v. Brunsman, No. 2:11–cv–628, 2012
WL 668819, at *11 (S.D. Ohio Feb.29, 2012) (citing Bonilla, 370 F.3d at 498).
The record fails to reflect that any objective factor prevented Petitioner from presenting
his claims to the Ohio courts. Again, a claim of the denial of constitutionally effective assistance
of counsel cannot constitute cause for Petitioner’s procedural default because he has waived that
claim for review. Edwards v. Carpenter, 529 U.S. at 451-52 (2000)(a claim of ineffective
assistance of appellate counsel cannot constitute cause for a procedural default unless the claim
has been presented to the state courts and is not, itself, procedurally defaulted).
Petitioner asserts that he is actually innocent of the charges against him.
The United States Supreme Court has held that a claim of actual
innocence can be raised “to avoid a procedural bar to the
consideration of the merits of [the petitioner’s] constitutional
claims.” Schlup v. Delo, 513 U.S. 298, 326–27, 115 S.Ct. 851, 130
L.Ed.2d 808 (1995). “[I]n an extraordinary case, where a
3
constitutional violation has probably resulted in the conviction of
one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural
default.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91
L.Ed.2d 397 (1986). In Schlup, the Supreme Court held that a
credible showing of actual innocence was sufficient to enable a
court to reach the merits of an otherwise procedurally-barred
habeas petition. Schlup, 513 U.S. at 317, 115 S.Ct. 851. The actual
innocence claim in Schlup is “not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on the
merits.” Id. at 315, 115 S.Ct. 851 (citing Herrera v. Collins, 506
U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).
Souter v. Jones, 395 F.3d 577, 588-89 (6th Cir. 2005).
Petitioner has not argued, and the Court's independent review of the record does not
reveal that any “new facts” have arisen that undermine the result of his trial. Petitioner cannot,
therefore, establish a claim for actual innocence sufficient to avoid his procedural default.
Petitioner presents no new evidence not previously available indicating that this case is of
the rare or extraordinary nature required to establish a claim of actual innocence such that this
Court may consider the merits of claims he otherwise has waived for review. Further, the United
States Supreme Court has never directly held that an independent or free standing claim of actual
innocence may serve as a basis for federal habeas corpus relief. To the contrary, the Supreme
Court has noted in dicta, “[f]ew rulings would be more disruptive of our federal system than to
provide for federal habeas review of free-standing claims of actual innocence.” Herrera v.
Collins, 506 U.S. 390, 401 (1993); see also House v. Bell, 547 U.S. 518, 554-55 (2006)(declining
to resolve the issue).
Petitioner requests the Court grant his request for a certificate of appealability. Where, as
here, a claim has been dismissed on procedural grounds, a certificate of appealability shall issue
where jurists of reason would find it debatable whether the Court was correct in its procedural
4
ruling that petitioner waived his claims of error, and whether petitioner has stated a viable
constitutional claim. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Both of these showings
must be made before a court of appeals will entertain the appeal. Id.
This Court is not persuaded that Petitioner has met this standard here.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons that follow, Petitioner’s Objection, ECF 12, is OVERRULED.
The Report and
Recommendation is ADOPTED and AFFIRMED. This case is hereby DISMISSED.
Petitioner’s request for a certificate of appealability is DENIED.
IT IS SO ORDERED.
Date: December 8, 2014
s/James L. Graham
______________________________
JAMES L. GRAHAM
United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?