Boddie v. Warden, Chillicothe Correctional Institution

Filing 27

REPORT AND RECOMMENDATIONS re 3 Petition for Writ of Habeas Corpus filed by Howard Boddie, Jr. The Magistrate Judge RECOMMENDS that this action be DISMISSED without prejudice as unexhausted. Objections to R&R due by 8/31/2015. Signed by Magistrate Judge Norah McCann King on 8/13/2015. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HOWARD BODDIE, JR.,
Petitioner,
Case No. 2:14-cv-00226
Judge Watson
Magistrate Judge King

v.
CHARLOTTE JENKINS, WARDEN,
CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. 2254. This matter is before the Court on the Petition (ECF No. 3), Respondent’s Return
of Writ (ECF No. 19), Petitioner’s Traverse (ECF No. 25, 26), and the exhibits of the parties.
For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be
DISMISSED without prejudice as unexhausted. Alternatively, Petitioner may notify the Court,
within fourteen (14) days, that he intends to delete his unexhausted claim and proceed only on
his remaining, exhausted, claims.

Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
On May 6, 2008, a Franklin County Grand Jury indicted appellant
with one count of domestic violence in violation of R.C. 2919.25
and one count of abduction in violation of R.C. 2905.02, both
felony offenses. Appellant entered a not guilty plea to the charges.

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Eventually, a jury found appellant guilty of both charges on May
27, 2010. The trial court sentenced appellant accordingly.
Appellant appeals and assigns the following errors:
I.

APPELLANT'S RIGHT TO A SPEEDY TRIAL WAS
VIOLATED UNDER OHIO LAW AS WELL AS THE
OHIO AND FEDERAL CONSTITUTIONS WHEN
NUMEROUS DELAYS OCCURRED PRIOR TO HIS
TRIAL.

II.

APPELLANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL CONTRA HIS RIGHTS
UNDER THE OHIO AND FEDERAL CONSTITUTIONS.

State v. Boddie, No. 10AP-687, 2011 WL 2586717, at *1 (Ohio App. 10th Dist. June 30, 2011).
On June 30, 2011, the appellate court affirmed the judgment of the trial court. Id. Petitioner
apparently did not file an appeal with the Ohio Supreme Court.
On June 20, 2012, petitioner filed a pro se motion to reopen his appeal pursuant to Rule
26(B) of the Ohio Rules of Appellate Procedure, again asserting the denial of a speedy trial and
the ineffective assistance of trial counsel. See Exhibit 30, attached to Motion to Dismiss (ECF
No. 8-2), PageID# 209. On September 25, 2012, the Ohio Tenth District Court of Appeals
denied petitioner’s motion as untimely and without merit. (ECF No. 8-3, PageID# 317.) On
February 6, 2013, the Ohio Supreme Court dismissed the appeal. State v. Boddie, 134 Ohio
St.3d 1451 (Ohio 2013).1
On July 26, 2011, appellant filed a “petition to vacate or set aside
judgment of conviction or sentence.” Therein, appellant again
claimed that he had been denied the effective assistance of trial
counsel. He also alleged that law enforcement threatened to pursue
criminal charges against the victim if she refused to testify against
him, and in turn, she committed perjury. Appellant asserted that
the victim's health history and prior criminal convictions affected
her credibility. Appellant attached several unsworn documents to
his petition. Among these documents were letters that appellant

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  The Ohio Supreme Court also denied Petitioner’s motion to take judicial notice pursuant to Ohio Evid.R. 201 and
to provide a complete copy of voir dire transcripts.   

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claimed were written by the victim, including one in which the
victim stated that appellant “did not abduct” her. (R. 213.)
On June 1, 2012, appellant filed a “motion to vacate sentence,”
which again raised an ineffective assistance of trial counsel claim
and also alleged he was denied his right to a speedy trial.
On September 8, 2011, without holding a hearing, the trial court
denied the July 26, 2011 petition because the issues raised by
appellant were barred by the doctrine of res judicata. The trial
court also denied appellant's June 1, 2012 motion to vacate his
sentence on August 15, 2012 without holding a hearing. The court
reasoned that res judicata precluded appellant from raising the
issue of a speedy trial violation, and he failed to support the
substantive requirements for his ineffective assistance of counsel
claim. Appellant appealed from the judgments of the trial court,
and this court consolidated the appeals.
III.

ASSIGNMENTS OF ERROR

Appellant assigns three errors for our consideration:
[I.] Appellant contends that the trial court committed plain and
prejudicial error, and denied him due process and equal protection
of law when the trial court denied appellant's motion for postconviction relief without (1) holding a formal hearing/evidentiary
hearing on his misconduct claims, and (2) for denying the petition
without providing findings of fact and conclusions of law in
violation of appellant's U.S. constitutional rights to meaningful
access-to-the court founded under the 1st, and 14th amendments.
[II.] Appellant contends that he was denied due process and
meaningful access-to-the-courts when the trial court denied
appellant's post-conviction motion on res-judicata grounds in
violation of appellant's 1st and 14th amendment rights under the
United States Constitution.
[III.] Appellant contend that the trial court violated his
constitutional rights to meaningful access-to-the courts, due
process, and equal protection of law under the 1st and 14th
amendments to the U.S. Constitution when the court deliberately
ignored evidence presented that appellant suffered ineffective
assistance of counsel at trial.

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State v. Boddie, Nos. 12AP-811, 12AP-812, 2013 WL 4973012, at *1-3 (Ohio App. 10th Dist.
Sept. 12, 2013). The state court of appeals affirmed the judgment of the trial court. Id. Petitioner
apparently did not file an appeal to the Ohio Supreme Court.
On October 15, 2012, however, Petitioner filed a petition for a writ of habeas corpus with
the Supreme Court of Ohio. Exhibit 57, attached to Motion to Dismiss (ECF No. 8-5), PageID#
550. On November 28, 2012, the Ohio Supreme Court sua sponte dismissed the petition.
Exhibit 59, attached to Motion to Dismiss (ECF No. 8-5), PageID# 592.
On March 3, 2014, Petitioner filed this action, alleging that the trial court
unconstitutionally denied his petition for post conviction relief without conducting an evidentiary
hearing (claim one); that the trial court abused its discretion and denied him due process by
denying his post conviction claims as barred under Ohio’s doctrine of res judicata (claim two);
that he was denied due process and equal protection when the Ohio Supreme Court failed to
provide him with a transcript of voir dire proceedings (claim three); that he was denied a fair
trial based on prosecutorial misconduct (claim four); that the Ohio Supreme court improperly
refused to accept his post conviction appeal (claim five); that he was denied the effective
assistance of counsel (claim six); that he was denied “a fair trial, confrontation right, effective
assistance of counsel, due process [and] equal protection. . . by the fraudulent concealment of
exculpatory and impeaching material evidence,” Petition (ECF No. 3), PageID# 79 (claim
seven); that the evidence is constitutionally insufficient to sustain his convictions (claims eight
and nine); and that he was convicted in violation of the Fourth Amendment (claim ten).
Respondent contends that Petitioner’s claims fail to state a basis for relief and are procedurally
defaulted or without merit.

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Exhaustion
In claim six, Petitioner alleges that he was denied the effective assistance of counsel
because his attorney failed to consult with him or to conduct adequate investigation. Petition
(ECF No. 3), PageID# 78. Although Petitioner raised this same claim in the state court of
appeals, he did not pursue an appeal to the Ohio Supreme Court. However, Petitioner may still
file a motion for a delayed appeal to the Ohio Supreme Court. See Rule 7.01(A)(4), Rules of
Practice of the Supreme Court of Ohio.
A state prisoner seeking federal habeas corpus relief must first exhaust the remedies
available to him in the state courts. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270
(1971). In Ohio, this exhaustion requirement includes direct and delayed appeals to the Ohio
Court of Appeals and the Ohio Supreme Court. Mackey v. Koloski, 413 F.2d 1019 (6th Cir.
1969); Allen v. Perini, 26 Ohio Misc. 149 (6th Cir.1970). Because Petitioner did not pursue
either a direct or delayed appeal to the Ohio Supreme Court, Petitioner has not exhausted claim
six.
Federal courts may not entertain “mixed petitions,” i.e., petitions that present both
exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). However, federal
courts have the discretion to stay a mixed petition in order to permit the petitioner to present his
unexhausted claims to the state court, and then to return to federal court for review of all, now
exhausted, claims. Rhines v. Weber, 544 U.S. 269 (2005). However, stays under these
circumstances should be only sparingly used; stays are not appropriate, for example, when the
unexhausted grounds are plainly meritless. Id. at 278. A petitioner seeking a stay to permit
exhaustion of an unexhausted claim must demonstrate both good cause for having failed to

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exhaust his state court remedies and a potentially meritorious claim. Id. at 277–78. Petitioner
cannot meet this standard here.
The record reveals that that Petitioner cannot establish good cause for having failed to
pursue a delayed appeal in the Ohio Supreme Court. Further, his claim is not potentially
meritorious because it appears from the record that his claim is likely barred from review by the
Ohio Supreme Court on the basis of untimeliness. A stay of proceedings is unwarranted because
a motion for delayed appeal would have little, if any, likelihood of success. Williams v. Thaler,
602 F.3d 291 (5th Cir.2010) (When a petitioner is “procedurally barred from raising [his] claims
in state court,” his “unexhausted claims are plainly meritless.”)

Recommended Disposition
The Magistrate Judge therefore RECOMMENDS that this action be DISMISSED
without prejudice as unexhausted.

Alternatively, Petitioner may notify the Court, within

fourteen (14) days, if he intends to delete his unexhausted claim six and proceed on only his
remaining, exhausted, claims.

Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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

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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,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
August 13, 2015

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