Ellis v. Warden Ross Correctional Institution

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 4/16/14. (lvw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BARNELL E. ELLIS,
Petitioner,
CASE NO. 2:13-CV-682
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE KEMP

v.
WARDEN, ROSS CORRECTIONAL
INSTITUTION,
Respondent.

OPINION AND ORDER
On March 20, 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. This matter is before the Court on Petitioner’s Objection to that recommendation.
For the reasons that follow, Petitioner’s Objection, Doc. No. 13, is OVERRULED. The Report
and Recommendation is ADOPTED and AFFIRMED. This action hereby is DISMISSED.
In this habeas corpus petition, Petitioner asserts that he was denied a fair trial and his
right to present a defense due to confusing and misleading jury instructions on the law of selfdefense and the prosecutor’s misleading statements on the issue.

The Magistrate Judge

recommended that this sole claim for relief be dismissed on the grounds of procedural default.
Petitioner objects to that recommendation.
The Magistrate Judge concluded that Petitioner waived his sole claim for relief by failing
to object at trial. The state appellate court therefore reviewed the claim for plain error only,
which plainly constitutes a procedural default of the underlying claim. See, e.g., Gulertekin v.
Tinnelman-Cooper, 340 F.3d 415, 423 (6th Cir. 2003). Petitioner failed to establish cause and

prejudice for the procedural default. He could not raise, as cause for this procedural default, a
claim of ineffective assistance of trial counsel, because he never presented that claim to the Ohio
courts. The Magistrate Judge therefore correctly concluded that Petitioner failed to establish
cause for his procedural default of his claim regarding improper jury instructions. See Edwards
v. Carpenter, 529 U.S. 446, 452-53 (2000)(ineffective assistance of counsel may only constitute
cause for a procedural default where it has been presented to the state courts and is not, itself,
procedurally defaulted.)
Petitioner, however, asserts that he has established cause for his failure to present a claim
of ineffective assistance of trial counsel to the state courts.

That claim is the ineffective

assistance of appellate counsel. Petitioner likewise never presented this latter claim to the state
courts. He contends, as cause for his failure to do so, that he could not present a claim of
ineffective appellate counsel to the state courts, because he was represented by the same attorney
throughout his appeal process, until January 23, 2013, when the Ohio Supreme Court dismissed
his appeal, and after the ninety day time period to file an application to reopen the appeal
pursuant to Ohio Appellate Rule 26(B) had already expired. Petitioner contends this is so
because Ohio prohibits “hybrid representation” and would not permit him to pursue Rule 26(B)
proceedings while he remained represented by counsel. Petitioner acknowledges that he could
still pursue a delayed Rule 26(B) application. He argues, however, that any such an attempt
would be futile, as the state appellate court most certainly would deny such action. See
Objection. Petitioner additionally contends that he is actually innocent of the charges against
him, so as to justify a merits review of his otherwise procedurally defaulted claim. Id.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner’s
arguments fail to persuade this Court. Accepting all of Petitioner’s allegations as true, his claim

of ineffective assistance of appellate counsel remains unexhausted. Petitioner cannot establish
cause for his failure, to date, to file a delayed Rule 26(B) application in the state appellate court,
although such remedy remains available to him. That the state appellate court may deny a
petitioner’s request does not constitute cause for failing to pursue a remedy that remains
available to him. Although Petitioner may only have a slim chance of success, “ ‘an improbable
argument is not automatically futile’ ” and a petitioner in this situation “ ‘must at least give
Ohio’s courts a chance to decide’” before declaring that any attempt to file an untimely (Rule
26(B) application) would be an exercise in futility. See Lee v. Warden, Noble Correctional
Institution, No. 2013 WL 4479200, at 9-10 (S.D. Ohio Aug. 19, 2013)(citing Ortiz v. Wolfe, 466
Fed. Appx. 465 (6th Cir. March 1, 2012). Whether or not the state appellate court would have
entertained a delayed Rule 26(B) application, Petitioner had an obligation to seek review of his
claims in order to satisfy § 2254’s exhaustion requirement. To allow him, or any petitioner, to
avoid that requirement by claiming that such review was unlikely to happen would be to
undercut the very purpose of the exhaustion requirement, which is to give the state courts a full
and fair opportunity to correct their own errors before a federal court considers whether a state
conviction should be overturned. As the Supreme Court said in Rhines v. Weber, 544 U.S. 269,
273 (2005), “the interests of comity and federalism dictate that state courts must have the first
opportunity to decide a petitioner's claims.” Consequently, petitioner has not shown good cause
for the procedural default of his claim of ineffective assistance of trial counsel, or his underlying
claim regarding the jury instructions in this case.
Petitioner likewise does not prevail on his claim that he is actually innocent of the
charges against him. Petitioner refers to no new reliable evidence that was not presented at trial
that establishes he is factually innocent of the charges against him such that this is an

extraordinary case warranting review of the claim he has waived. See Souter v. Jones, 395 F.3d
577, 590 (6th Cir. 2005)(citations omitted).
Petitioner’s Objection, Doc. No. 13, is OVERRULED.

The Report and

Recommendation is ADOPTED and AFFIRMED. This action hereby is DISMISSED.
IT IS SO ORDERED.
\s\ George C. Smith_______________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT