Akram v. Warden, Pickaway Correctional Institution

Filing 16

REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus filed by Aleem M. Akram be DISMISSED. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 2/1/2016. (agm)(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
ALEEM M. AKRAM,
CASE NO. 2:14-CV-01432
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254.

This matter is before the Court on the petition, as

amended, Respondent’s Return of Writ, and the exhibits of the parties. Petitioner did
not file a traverse although the Court granted him an extension of time to do so. For the
reasons that follow, the Court recommends that this action be DISMISSED.
I. Procedural History
On April 13, 2012, the Fairfield County, Ohio grand jury returned a thirteencount indictment charging Petitioner with a wide variety of criminal activity, including
trafficking in and possession of drugs, tampering with evidence, obstructing official
business, identity fraud, and resisting arrest. Return, Ex. 1. The case was set for jury
trial, but prior to trial, and after a pre-trial motion to suppress evidence was denied,
Petitioner entered a no contest plea to certain counts of the indictment (others were
dismissed as part of the plea bargain). He was then sentenced to an aggregate prison

term of eight years, with one year suspended in favor of five years of community
control. Return, Ex. 11.
Represented by the Public Defender, Petitioner filed a timely notice of appeal. Ex.
12. He did not file a supporting brief, however, but moved to dismiss the appeal, a
motion granted by the Fifth Appellate District Court of Appeals on July 12, 2013. Ex. 14.
On

May 19, 2014, more than nine months after the appeal was dismissed,

Petitioner filed a pro se application to reopen the appeal pursuant to Ohio Appellate
Rule 26(B). Ex. 15. He asserted, as cause for the delay (his motion was due 90 days
after the dismissal entry was filed), that counsel improperly advised him to dismiss his
appeal and pursue post-conviction relief. He claimed that his own research, conducted
after he arrived at an institution with a law library, convinced him that he had
meritorious issues to pursue on direct appeal.

The State opposed the motion as

untimely and as lacking merit. In a judgment entry filed on June 20, 2014, the state
court of appeals held that Petitioner had not shown good cause for his delay,
specifically noting that 202 days had elapsed between Petitioner’s arrival at an
institution with a law library and the filing of his motion to reopen. Ex. 17. Petitioner
filed a timely appeal to the Ohio Supreme Court. On October 22, 2014, the Ohio
Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R.
7.08(B)(4), which sets forth various reasons why the Supreme Court might decline to
accept an appeal. Ex. 23.  
On September 2, 2014, Petitioner filed this federal habeas corpus case.

He

asserted five grounds for relief: (1) that he was denied his right to have a jury determine

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his sentence; (2) that the trial court violated Rule 11 of the Ohio Rules of Criminal
Procedure by advising him that his sentences could be run consecutively to each other;
(3) that he was denied the effective assistance of trial counsel because his attorney failed
to seek an interlocutory appeal of the denial of his motion to suppress, failed to object to
the trial court’s statement that he could be sentenced to consecutive terms of
incarceration on allied offenses of similar import, and failed to advise Petitioner that he
would serve at least two years incarceration when Petitioner was under the impression
that he could receive community control in lieu of prison; (4) that he was denied the
effective assistance of appellate counsel when the ineffective assistance of counsel claim
was not raised on direct appeal; and (5) that the trial court improperly denied his
motion to suppress evidence. On October 7, 2014, Petitioner amended his petition to
assert that the trial court violated Blakely v. Washington, 542 U.S. 296 (2004) by imposing
the maximum sentence. It is the position of the Respondent that all of Petitioner’s
claims are procedurally defaulted, or alternatively, that they lack merit.
II. Procedural Default
A. Legal Standard
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. § 2254(a). 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 courts, a state criminal
defendant with federal constitutional claims is required to present those claims to the

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state courts 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 his claims, then his petition is subject to
dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103
(1982 (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust his claims but would find those claims barred if later
presented to the state courts, “there is a procedural default for purposes of federal
habeas....” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular
claim to the highest court of the State so that the State has a fair chance to correct any
errors made in the course of the trial or the appeal before a federal court intervenes in
the state criminal process. This “requires the petitioner to present ‘the same claim
under the same theory’ to the state courts before raising it on federal habeas review.”
Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494,
497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is
that a habeas petitioner must do so in a way that gives the state courts a fair
opportunity to rule on the federal law claims being asserted. That means that if the
claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal
court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72,
87 (1977), “contentions of federal law which were not resolved on the merits in the state
proceeding due to respondent's failure to raise them there as required by state

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procedure” also cannot be resolved on their merits in a federal habeas case-that is, they
are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state
argues that a federal habeas claim is waived 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, the Court must
determine whether the state courts actually enforced the state procedural sanction. Id.
Third, it must be decided whether the state procedural forfeiture is an adequate and
independent state ground upon which the state can rely to foreclose review of a federal
constitutional claim. Id. Finally, if the Court has determined that a state procedural
rule was not complied with, and that the rule was an adequate and independent state
ground, then the petitioner must 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 applies to failures to raise or preserve
issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause,
petitioner must show that “some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a
procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute
cause, an ineffective assistance of counsel claim generally must “ ‘be presented to the

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state courts as an independent claim before it may be used to establish cause for a
procedural default.’ ” Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478,
479 (1986)). That is because, before counsel's ineffectiveness will constitute cause, “that
ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore
must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411
F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to
“satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance
claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The Supreme Court
explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and
the procedural-default doctrine in Coleman: “In the absence
of the independent and adequate state ground doctrine in
federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in
state court. The independent and adequate state ground
doctrine ensures that the States' interest in correcting their
own mistakes is respected in all federal habeas cases.” 501
U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again
considered the interplay between exhaustion and procedural
default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter
doctrine was necessary to “ ‘protect the integrity’ of the
federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be
utterly defeated if the prisoner were able to obtain federal
habeas review simply by “ ‘letting the time run’ ” so that
state remedies were no longer available. Id., at 848, 526 U.S.
838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be
no less frustrated were we to allow federal review to a
prisoner who had presented his claim to the state court, but
in such a manner that the state court could not, consistent
with its own procedural rules, have entertained it. In such

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circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a
“fair ‘opportunity to pass upon [his claims].’ ” Id., at 854, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J.,
dissenting) (emphasis added) (quoting Darr v. Burford, 339
U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on
the merits unless “review is needed to prevent a fundamental miscarriage of justice,
such as when the petitioner submits new evidence showing that a constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Hodges
v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96
(1986)).
B. Analysis
Every ground for relief which Petitioner asserts in his federal habeas corpus
petition, with the exception of his claim of ineffective assistance of appellate counsel,
involves something that happened at the trial court level, and the evidence relied on by
Petitioner in support of such claims is apparent from the face of the record - that is,
additional evidence beyond what directly appears from the record is not needed in
order to support the claim.

Under Ohio law, the only proper way to raise claims

apparent from the face of the record is through a direct appeal. “Ohio courts have
consistently held that claims that can be adjudicated based on facts in the record can
only be presented on direct appeal.” Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001).

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Petitioner did file a direct appeal, but he withdrew it. As a result, none of the
claims he raises here (again, except for his ineffective assistance of appellate counsel
claim) were ever presented to the Ohio courts and none were decided on their merits.
Ohio law provides that further consideration of an issue not raised on direct
appeal is barred by the doctrine of res judicata. That has been the law in Ohio for some
time. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981);
State v. Perry, 10 Ohio St. 2d 175 (1967). This Court has consistently determined that
Ohio's res judicata rules serve important state interests in the finality of criminal
convictions. See, e.g. Wiley v. Banks, 2013 WL 1663962 (S.D. Ohio Apr.17, 2013), adopted
and affirmed 2013 WL 3350668 (S.D. Ohio July 3, 2013).

Further, this Court has

consistently enforced procedural defaults arising from the failure to pursue a claim on
direct appeal even when the Ohio courts have not applied the doctrine of res judicata
because they were never presented with the occasion to do so. See Buell v. Mitchell,
supra, holding that a procedural default could be enforced concerning a claim never
presented to them because “the Ohio courts could not invoke a procedural rule against
claims that were not brought before [them].”

The first three Maupin factors are

therefore satisfied here.
The only cause which Petitioner asserts for his failure to pursue a direct appeal is
ineffective assistance of appellate counsel, an argument he raised in his Rule 26(B)
motion filed with the state appellate court. As noted above, ineffective assistance of

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counsel, if it rises to the level of a constitutional violation, may excuse a procedural
default. However, a habeas petitioner may not simply argue to the federal court that
his state court attorney was ineffective; he must also present that claim to the state
courts first, and do so in a proper way so that they may consider whether the claim has
merit. If he does not, and procedurally defaults his ineffective assistance of counsel
claim, he cannot rely on it as a basis for resurrecting other claims which were defaulted
as well.
The Court notes, first, that the only issues which Petitioner identified in his Rule
26(B) motion as having merit, and which, in his view, appellate counsel should have
raised, are (1) a Fourth Amendment claim relating to the search and seizure of evidence
and (2) a claim that both counsel and the trial court erred in not telling him he was
facing a mandatory sentence on the drug trafficking charge. See Ex. 15. That being so,
he never argued to the state courts that his appellate attorney was ineffective for failing
to raise any of the other claims which he now attempts to raise here. At a minimum,
his claims about having a jury determine his sentence - grounds one and six - were
defaulted simply because he did not assert in state court that his appellate attorney was
ineffective for not having raised them on appeal. Since he did not make that argument
at all to the state court, he cannot make it here, either.
Beyond that failure, however, Petitioner also did not get the state courts to
review his ineffective assistance of counsel claims on their merits because he filed his
Rule 26(B) motion too late. That is also a procedural default. Scuba v. Brigano, 527 F.3d
479, 488 (6th Cir. 2007) held that, using the Maupin factors, the time limit found in Rule

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26(B) is a valid state procedural rule and that it is an adequate and independent ground
for denying relief. Thus, the question again becomes whether Petitioner can show that
some external factor prevented him from filing a timely Rule 26(B) motion.
In state court, Petitioner claimed that he could not have filed a timely motion
because the 90-day time period elapsed before he was transferred to an institution
which had a law library where he could research the issues that should have been
presented on appeal.

He conceded, however, that he arrived at the Pickaway

Correctional Institution on October 29, 2013. He did not file the Rule 26(B) motion until
May 19, 2014. It was that delay, and not the initial delay while Petitioner was at the
Hancock County jail, which the state court focused on in determining that the Rule
26(B) motion was untimely.

This Court is not convinced that the circumstances

described in Petitioner’s motion excused his delay or justified his untimely filing.
Consequently, the Court agrees with Respondent that all of Petitioner’s claims including his ineffective assistance of appellate counsel claims - were procedurally
defaulted.
Beyond the four-part Maupin analysis, this court is required to consider whether
this is “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). “It is important to note in this regard that
‘actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v.
United States, 523 U.S. 614, 623.

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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]
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 evidence-whether 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).
The record fails to reflect that Petitioner is actually innocent. He entered a no
contest plea to the charges, and the State established, through testimony, that he was in
possession of drugs in distribution quantities.
guilt.

None of his claims go to the issue of

Under these circumstances, he cannot use the “actual innocence” exception to

obtain review of his claims by this Court.
III. Recommended Disposition

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For all of these reasons , the Court recommends that the petition for a writ of
habeas corpus be denied and that this action be DISMISSED.
IV. 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/ Terence P. Kemp
United States Magistrate Judge

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