Scott v. Warden Pickaway Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS re 7 MOTION to Dismiss filed by Warden Pickaway Correctional Institution. The Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss be GRANTED and that this case be dismissed Objections to R&R due by 1/21/2014. Signed by Magistrate Judge Norah McCann King on 1/3/2014. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DELBERT W. SCOTT,
Petitioner,
CASE NO. 2:13-CV-0362
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KING

v.
WARDEN, PICKAWAY
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. 4, Respondent’s Motion
to Dismiss, Doc. No. 7, Petitioner’s Response, Doc. No. 8, and the exhibits of the parties. For
the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent’s Motion to
Dismiss be GRANTED and that this case be dismissed.
Facts and Procedural History:
Petitioner challenges his August 18, 2009, convictions, following a jury trial in the
Madison County Court of Common Pleas, on five counts of rape of a child under the age of 13
and 11 counts of sexual battery. State v. Scott, Case No. CRI20090041, Indictment, Exhibit 11 to
Motion to Dismiss.1 The Ohio Twelfth District Court of Appeals summarized the relevant facts
and procedural history as follows:
In 2008, 22–year–old S.B. went to the Madison County Sheriff's
Office to report that Scott, her stepfather, had been sexually
abusing her since she was eight years old. Scott married S.B.'s
mother in 1988 when S.B. was three years old. Scott and S.B.'s

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 The Petition also referred to separate proceedings in which Petitioner was charged with fleeing a eluding. State v.
Scott, Case No. 2008 CR-07-070, Indictment, Exhibit 1 to Motion to Dismiss. In his Response, Petitioner clarifies
that he intends to challenge only the rape and sexual battery convictions. Response, PAGEID 976.

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mother had two daughters together after they were married.
According to S.B.'s testimony, Scott was a good father and “very
good role model” from the time he married her mother, until she
turned eight.
However, once S.B. turned eight years old, Scott told her that they
were going to “play house.” Scott “played house” with S.B. by
laying with her in either his or her bed, rubbing his penis between
her legs until he ejaculated on her stomach or into a towel,
performing cunnilingus on her, touching her vagina, digitally
penetrating her, as well as forcing her to perform oral sex acts on
him, including fellatio. S.B. testified that these acts occurred two to
three times a week.
During the times that Scott told S.B. that they were going to “play
house,” S.B.'s mother and her sisters were not at the house, or were
asleep in other rooms. Scott told S.B. that if she told anyone about
what was happening, she would never see her family again, that
her mother would go to jail, and that her sisters would be placed in
foster care.
S.B. turned 12 in 1997, and the abuse escalated to vaginal
penetration. The first time Scott engaged in vaginal intercourse
with S.B., he told her to tell her mother that she was ill, and that
she needed to stay home from school. Once S.B.'s mother and
sisters left the house for the day, Scott began to kiss S .B. and took
her upstairs to her bedroom. Scott became aggressive, told S.B.
that he was “tired of playing house,” and engaged in vaginal
intercourse with her. S.B. testified that as Scott held her down, she
screamed for him to stop and that she told him she was in pain.
After he completed the act, Scott apologized and told S.B. that he
loved her. From that day forward, Scott continued to engage in
vaginal intercourse with S.B. multiple times a week.
As S.B. grew up, Scott became more controlling over her, often
forbidding her from having contact with other young people,
especially boys. When S.B. had her first boyfriend as a sophomore
in high school, Scott would demand that S.B. have sex with him
before he would allow her to see her boyfriend. When S.B.'s
boyfriend did come over, Scott supervised the couple, and would
not allow them to hold hands or display any affection. S.B. also
had to have intercourse with Scott before he allowed her to go to
the prom.
When S.B. turned 18 and started college, Scott's controlling and
abusive behavior continued. He called her on her cell phone before
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classes started, between classes, when she left campus, and
continued to call until she would verify that she was home. This
behavior continued when S.B. turned 19 and enrolled in nursing
school.
After S.B. turned 21, Scott called her on the phone up to 20 times a
day to check her whereabouts. She moved out of the home, and
into her own apartment, hoping that she could escape Scott's abuse.
However, Scott came to S.B.'s home and forced her to have sex
with him. Scott continued to threaten S.B. by telling her that he
would kill her mother, sisters, and grandmother if she told anyone
of his actions. Scott also continued to call S.B. 20–30 times each
day, and began to follow her to and from work to make sure that
she was not “running around.”
In 2008, S.B. began dating her co-worker, Travis Gierhart.
Gierhart came to S.B.'s apartment frequently, and on one occasion,
Scott came to S.B.'s apartment while Gierhart was there. Scott
stayed with Gierhart and S.B. until approximately 1:00 a.m. and
then engaged in intercourse with S.B. after Gierhart left. Scott
continued to call S.B. multiple times a day at work, and Gierhart
became suspicious of the relationship between S.B. and Scott.
Gierhart confronted S.B. with Scott's obsessive behavior and asked
if she had been abused as a child. S.B. verified Gierhart's
suspicions, but told him that the abuse had stopped a few years
prior because she was fearful that Scott would do something to her
mother and sisters, who still lived in Scott's home. Soon after she
confided in Gierhart, S.B. told Scott that she was moving to be
closer to Gierhart, and he threatened her again. S.B. then confided
the entire truth to Gierhart, and he persuaded her to go to the
police.
Lieutenant Doug Crabbe from the Madison County Sheriff's Office
testified that he received a complaint from S.B. regarding Scott's
sexual abuse. Officers tried to locate Scott in order to question
him, and attempted to pull him over as he approached S.B.'s
apartment. However, Scott fled, and a police chase ensued. Scott
ultimately crashed his vehicle into a tree, and was transported to
the hospital. Upon his release, he was detained.
Lt. Crabbe interviewed Scott after providing Miranda warnings,
and Scott admitted to having a “close sexual relationship” with
S.B. for the past five years. Scott provided a written statement in
which he represented that the sexual relationship was consensual

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and that he had told S.B. that if she wanted to end the intercourse,
she “needed to go away and not come back.”
Scott was indicted on 16 counts, one for each year of abuse that
S.B. suffered between the ages of eight and 23. Specifically, Scott
was charged with five counts of rape of a person less than 13 years
of age, for the sexual acts that occurred when S.B. was between the
ages of eight and 12. Scott was also charged with 11 counts of
sexual battery, for the sexual abuse that occurred once S.B. turned
13 until the time she reported the abuse.
Scott requested a jury trial, and such was held over two days in
August 2009. The jury heard testimony from S.B., Gierhart, and
Lt. Crabbe. The jury returned guilty verdicts for each count, and
the trial court sentenced Scott to an aggregate term of 50 to 100
years. Scott was also classified a Tier III sexual offender, with
lifetime reporting requirements.
Scott requested appellate counsel be appointed at the end of his
sentencing hearing. However, trial counsel did not file a timely
notice of appeal, and appellate counsel was not appointed. Scott
filed a pro se notice of delayed appeal, but such motion was denied
by this court for failure to explain the reason for delay. Scott
ultimately obtained appellate counsel, and filed a motion for
delayed appeal, which this court granted.
State v Scott, No. CA2011-02-003, 2011 WL 6382540, at *1-3 (Ohio App. 12th Dist. Dec. 19,
2011). In his delayed direct appeal, Petitioner asserted that the evidence was constitutionally
insufficient to sustain the convictions on rape and sexual battery as charged in counts 4, 6 and 9.
Id. at *3. On December 19, 2011, the appellate court affirmed the judgment of the trial court.
Id. On March 7, 2012, the Ohio Supreme Court dismissed Petitioner’s appeal. State v. Scott,
131 Ohio St.3d 1476 (2012).
Petitioner pursued an application to reopen the appeal pursuant to Ohio Appellate Rule
26(B) in which he alleged that he had been denied the effective assistance of appellate counsel
because his appellate attorney failed to raise on appeal a claim of ineffective assistance of trial
counsel based on the latter’s failure to preserve Petitioner’s speedy trial rights. Exhibit 24 to

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Motion to Dismiss. On April 12, 2012, the state appellate court denied Petitioner’s Rule 26(B)
application, concluding that Petitioner had failed to establish the ineffective assistance of either
appellate or trial counsel because there had been no violation of Petitioner’s speedy trial rights.
Exhibit 25 to Motion to Dismiss.

On July 25, 2012, the Ohio Supreme Court dismissed

Petitioner’s appeal from that judgment. Exhibit 28 to Motion to Dismiss; State v. Scott, 132 Ohio
St.3d 1484 (2012).
On March 18, 2013, Petitioner filed a petition for post-conviction relief under O.R.C. §
2953.21, complaining that he had been denied his right to a speedy trial and that his attorneys
had failed to raise the issue. Exhibit 29 to Motion to Dismiss. On March 26, 2013, the trial court
denied Petitioner’s post-conviction petition, reasoning that there had been no denial of
Petitioner’s speedy trial rights. Exhibit 30 to Motion to Dismiss. Petitioner apparently did not
file an appeal from that decision.
On April 17, 2013, Petitioner filed the pro se Petition. He alleges that he is in custody in
violation of the Constitution of the United States based upon the following grounds:
1. Denied right to counsel during interigation [sic], right to fast
and speedy trial on all allegations of arrest on 06-13-08. They
refused to give copy of interigation [sic] recording. My lawyer
didn’t want to call any witnesses.
2. I showed new evidence in my post conviction motion. It
showed date of arrest and complaint of 06-13-08 and date of
trial 08-18-09 that was way past 90 days alone with exhibit
(H.p.4) of TPO that I refused to sign.
It is the position of the Respondent that 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

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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, 447 U.S. 478, 485 (1986); Engle v. Issac, 456 U.S. 107, 129 (1982); Wainwright v.
Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a reviewing court must undertake a four-part analysis when the state
argues that a federal habeas claim is precluded by the petitioner's failure to observe a state
procedural rule. 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, a court must determine whether the
state courts actually enforced the state procedural sanction. Id. Third, the court must decide
whether the state procedural rule 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 petitioner did not comply with a state procedural rule and that the rule was an
adequate and independent basis on which to do so, 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 a

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failure to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d
94 (6th Cir. 1985).
In his first claim for federal habeas corpus relief, Petitioner alleges that he was denied
counsel during his interrogation by police, that he was denied a fast and speedy trial, that he was
denied the effective assistance of counsel based on his attorney’s failure to call defense
witnesses, and that he was denied a fair trial because the prosecutor denied Petitioner a copy of
the recording of his interrogation. All of these claims appear to be readily apparent from the face
of the record.2 As such, they should have been raised on direct appeal, but were not. Further,
Petitioner may now no longer file an appeal, by operation of Ohio’s doctrine of res judicata.
See State v. Cole, 2 Ohio St.3d (1982); State v. Ishmail, 67 Ohio St.2d 16, (1981); State v. Perry,
10 Ohio St.2d 175, (1967)(claims must be raised on direct appeal, if possible, or they will be
barred by the doctrine of res judicata.). The state courts were never given an opportunity to
enforce the procedural rule at issue due to the nature of Petitioner's procedural default.
Ohio's doctrine of res judicata in this context 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

2

 The procedural default of Petitioner’s claim that he was denied his right to a speedy trial is also addressed in the
Court’s discussion of Petitioner’s waiver of his second habeas claim.

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(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
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 Ohio’s doctrine of res judicata in this context does not rely on or
otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of
relevant case law that the Perry rule is an adequate and independent ground for denying relief.
In his second claim for habeas corpus relief, Petitioner alleges that he was denied his
right to a speedy trial. Petitioner appears to raise this claim only in terms of an alleged violation
of state law. However, issues of state law fail to warrant 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. 28 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, 104 S.Ct. 871 (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

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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 an error resulted in the
denial of fundamental fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284,
286 (6th Cir.1988).
To the extent that Petitioner’s second claim raises an issue of federal constitutional law
and assuming, further, that Petitioner fairly presented this federal constitutional issue to the state
courts, that claim is also procedurally defaulted. Petitioner alleged that he had been denied his
right to a speedy trial in his petition for post-conviction relief. Exhibit 29 to Motion to Dismiss.3
However, Petitioner failed to appeal the trial court’s denial of that petition. Petitioner may no
longer do so, as Ohio does not permit delayed appeals in post-conviction proceedings.
Under Ohio law, a delayed appeal is not available in civil
proceedings. See Ohio Rule of Appellate Procedure 5(A). The
Supreme Court of Ohio has specifically held that “a delayed appeal
pursuant to App. R. 5(A) is not available in the appeal of a postconviction relief determination . . . [and] that post-conviction relief
proceedings will be governed by the Ohio Rules of Appellate
Procedure as applicable to civil actions.” State v. Nichols, 11 Ohio
St.3d 40, 43, 463 N.E.2d 375, 378 (1984). Since petitioner failed to
timely file an appeal from the trial court's denial of his postconviction petition and Ohio does not permit delayed appeals from
post-conviction relief determinations, the first Maupin factor is met
as there is a state procedural rule applicable to petitioner's claim. .
. .
Wright v. Lazaroff, 634 F.Supp. 2d 971, 987-88 (S.D. Ohio 2009).
[T]his Court may presume that the state court would not have
ignored its own procedural rule disallowing delayed appeals from
post-conviction proceedings. Simpson v. Sparkman, 94 F.3d 199,
203 (6th Cir. 1996). The inapplicability of delayed appeals under

3

 Petitioner’s Rule 26(B) application did not directly assert a speedy trial claim. Rather, that application asserted a
claim that Petitioner’s appellate counsel was ineffective for failing to raise on appeal a claim of ineffective
assistance of trial counsel by reason of the latter’s failure to preserve Petitioner’s speedy trial rights.

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Ohio App. R. 5(A) for denials of post-conviction relief is firmly
established and regularly followed by Ohio courts. See Carley v.
Hudson, 563 F.Supp.2d 760, 776 (N.D. Ohio 2008) (and cases
cited therein).
Id. at 988. See also Nesser v. Wolfe, 370 Fed. Appx. 665 (unpublished), 2010 WL 1141006, at
*4 (6th Cir. March 25, 2010)(holding that “Ohio does not permit delayed appeals in postconviction proceedings, and this is an adequate and independent ground upon which to deny
relief.”)(citation omitted).4 Thus, this Court concludes that Petitioner has procedurally defaulted
both of the claims that he presents for review in this proceedings.
Petitioner may still obtain review of the merits of his claims if he establishes cause for his
procedural defaults and actual prejudice from the alleged constitutional violations.
“ ‘[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]
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). Petitioner has failed to establish cause and
prejudice for his procedural default.
Petitioner can also avoid the consequences of his default if he presents new evidence that
he is actually innocent of the crimes upon which he stands convicted:
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
and argue the merits of his underlying claims.” Schlup, 513 U.S. at
316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is
whether “new facts raise[ ] sufficient doubt about [the petitioner's]

4

As noted supra, the state trial court denied Petitioner’s petition for post- conviction relief, because “defendant was
clearly brought to trial within 270 days, and such issue is not cognizable in this Court post appeal.” Exhibit 30 to
Motion to Dismiss.

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guilt to undermine confidence in the result of the trial.” Id. at 317,
513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. 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, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. 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 evidencewhether 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, 130
L.Ed.2d 808. The Court counseled however, that the actual
innocence exception should “remain rare” and “only be applied in
the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298, 115 S.Ct. 851,
130 L.Ed.2d 808.

Souter v. Jones, 395 F.3d 577, 589–90 (6th Cir. 2005) (footnote omitted).

This Court's

independent review of the Petition and record does not reveal new evidence of actual innocence
sufficient to avoid Petitioner’s procedural default.
WHEREUPON, the Magistrate Judge RECOMMENDS that Respondent’s Motion to
Dismiss, Doc. No. 7, be GRANTED and that this action be DISMISSED.
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

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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
January 3, 2014

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