Johnson v. Turner

Filing 20

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus. The Magistrate Judge RECOMMENDS that Petitioner's claim of the denial of the right to a speedy trial and the denial of the effective assistance of appellate counsel be DISMIS SED as procedurally defaulted, but that the claim of ineffective assistance of trial counsel be briefed on the merits. Objections to R&R due by 12/16/2016. Signed by Magistrate Judge Terence P. Kemp on 11/29/2016. (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
TYRONE E. JOHNSON, SR.,
CASE NO. 2:14-CV-01908
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE KEMP

Petitioner,
v.
NEIL TURNER,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. For the reasons that follow, the Magistrate Judge RECOMMENDS
that Petitioner’s claim regarding the denial of the right to a speedy trial and ineffective
assistance of appellate counsel be DISMISSED and that further briefing be ordered on
Petitioner’s ineffective assistance of trial counsel claim.
If this recommendation is adopted, Respondent should be DIRECTED to submit
a supplemental response addressing the merits of Petitioner’s claim of the denial of the
effective assistance of trial counsel within twenty-one days, and Petitioner should be
granted permission to file a response within twenty-one days thereafter.
I.

Procedural History

Petitioner challenges his convictions pursuant to his no contest plea in the
Fairfield County Court of Common Pleas on one count of engaging in a pattern of
corrupt activity, one count of complicity to commit robbery, and two counts of
complicity to commit theft. Petitioner asserts that he was denied due process when the

trial court denied his motion to dismiss on speedy trial grounds and that he was denied
the effective assistance of trial counsel because his attorney filed “useless requests for
information that expanded [the] State’s time to bring Petitioner to trial” (Petition, Doc. 1,
PageID# 6), and failed to prepare a defense, forcing Petitioner to enter a guilty plea
(claim one).

Petitioner also asserts that he was denied the effective assistance of

appellate counsel because his attorney failed to provide him with timely notice of the
state appellate court’s decision denying his appeal (claim two).

Petitioner was

represented by the same attorney at trial and on direct appeal. He additionally raises a
claim of the denial of the effective assistance of trial counsel.
As discussed in this Court’s prior Order, Doc. 16, Petitioner procedurally
defaulted his claim that he was denied his right to a speedy trial by failing to file a
timely appeal of the appellate court’s January 17, 2014, decision dismissing his appeal to
the Ohio Supreme Court. See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)(the Ohio
Supreme Court’s denial of a motion for leave to file a delayed appeal constitutes a
procedural ruling sufficient to bar federal habeas review). On June 27, 2014, Petitioner
filed a motion for a delayed appeal; however, the Ohio Supreme Court denied the
motion.
As cause for this procedural default, and in ground two of his habeas corpus
petition, Petitioner asserts the denial of the effective assistance of appellate counsel
based on his attorney’s alleged failure to advise him timely that the appellate court had
dismissed his appeal, resulting in his inability to file a timely appeal with the Ohio
Supreme Court.

It is the position of the Respondent that Petitioner also has
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procedurally defaulted his claim of the denial of the effective assistance of appellate
counsel by filing an untimely application to reopen the appeal under Ohio Appellate
Rule 26(B) and failing to file an appeal of the appellate court’s decision denying his
delayed Rule 26(B) application to the Ohio Supreme Court.
On April 26, 2016, the Court ordered supplemental briefing on Petitioner’s claim
of the denial of the effective assistance of appellate counsel. Petitioner’s Supplemental
Response, Respondent’s Reply, and Petitioner’s Response in Opposition re Reply have been
filed. Docs. 17-18.
II. Procedural Default
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
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
(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).
3

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
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
4

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
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
5

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
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

6

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)).
III. Speedy Trial; Ineffective Assistance of Appellate Counsel
As discussed, in claim one, Petitioner asserts that he was denied due process
because the state trial court denied his motion to dismiss on speedy trial grounds.
Petitioner raised this claim on direct appeal; however, he failed to file a timely appeal
with the Ohio Supreme Court, and the Ohio Supreme Court denied his motion for a
delayed appeal. Petitioner therefore has procedurally defaulted this claim. Bonilla v.
Hurley, 370 F.3d at 497; see also Womack v. Konteh, No. 3:06 CV 157, 2008 WL 123867, at *2
(N.D. Ohio Jan. 10, 2008)(enforcing procedural default based on the Ohio Supreme
Court’s denial of an untimely appeal).
Petitioner may still obtain a merits review of this claim if he establishes cause for
his procedural default as well as actual prejudice from the alleged constitutional
violation. As cause for his procedural default, and in ground two of his habeas corpus
petition, Petitioner asserts that his attorney performed in a constitutionally ineffective
manner by failing to notify him of the appellate court’s decision denying his appeal,
resulting in his inability to file a timely appeal with the Ohio Supreme Court.
“[C]ounsel has a duty to inform the accused of the resolution of a proceeding in
a timely fashion so that the accused retains his control over the decision to appeal.”
7

Smith v. State of Ohio Dept. of Rehabilitation and Corrections, 463 F.3d 426, 434 (6th Cir.
2006)(citing Strickland, at 688)(counsel’s duties include consulting with the defendant on
important decisions and keeping him informed of important developments). “Because
the decision regarding whether to ‘take an appeal’ is a ‘fundamental decision[ ]’ that
‘the accused has the ultimate authority to make,’ counsel has a duty to inform the
accused of the resolution of a proceeding in a timely fashion so that the accused retains
his control over the decision to appeal.” Id. at 434 (quoting Jones v. Barnes, 463 U.S. 745,
751 (1983)). Where counsel’s failure results in the defendant’s forfeiture of the appeal,
prejudice is presumed. Id. at 435 (citing Roe v. Flores-Ortega, 528 U.S. at 483). For this
presumption to apply, however, “the defendant must demonstrate that counsel's
deficient performance ‘actually cause[d] the forfeiture of the defendant's appeal.’ ” Id.
(citing Flores-Ortega, at 484). In other words, the defendant must establish that “ ‘there
is a reasonable probability that, but for counsel’s deficient failure’ to notify [him] of the
Ohio Court of Appeals decision, [he] ‘would have timely appealed’ to the Ohio
Supreme Court.” Id. (citing Flores-Ortega, at 484).
In assessing whether a defendant. . . “would have timely
appealed,”. . . we apply a rebuttable presumption that if the
period of time between when the defendant learned of the
decision and when he or she attempted to appeal the
decision is greater than the period allotted by state law for
the timely filing of an appeal-here, forty-five days-the
defendant fails to demonstrate that he or she “would have
timely appealed” the decision but for the counsel's deficient
failure to notify the defendant of the decision. In the absence
of other circumstances hindering the defendant's ability to
attempt to appeal the decision within this time frame,
allowing a greater amount of time would generally bestow a

8

windfall upon the defendant whose counsel promptly failed
to notify the defendant of a decision.
Smith, 463 F.3d at 435; see Baker v. Bradshaw, 495 Fed.Appx. 560, unpublished, 2012 WL
3538585, at *5 (6th Cir. Aug. 17, 2012)(no prejudice where the petitioner did not file a
motion for delayed appeal with the Ohio Supreme Court within forty-five days of the
date that he learned of the appellate court’s decision) ; Cumberledge v. Sloan, No. 1:13 CV
2067, 2014 WL 7005112, at * 11 (N.D. Ohio Dec. 10, 2014)(same).
Here, Petitioner was required to file an appeal with the Ohio Supreme Court by
March 3, 2014, within forty-five days of the appellate court’s January 17, 2014, dismissal
of the appeal. S.Ct.Prac.R. 701(A)(1)(a)(i). According to Petitioner, he did not learn
about the appellate court’s January 17, 2014, dismissal of his appeal until May 14, 2014,
when his wife, Sandra Johnson checked the court’s website. See Affidavit of Verity, Doc.
17, PageID# 287. He filed a motion for a delayed appeal on June 27, 2014, within fortyfive days thereafter.
However, Respondent has attached a copy of the prison’s Legal Mail Log
indicating that, during the time period at issue, Petitioner signed for the receipt of legal
mail from the Fairfield County Court twice on March 18, 2014, once on May 19, 2014,
and once again on June 20, 2014. Doc. 18-1, PageID# 305-07. The docket of the Fairfield
County Court of Common Pleas also indicates that, on March 11, 2014, the Clerk mailed
a “cost statement” to Petitioner, billing him for costs in the amount of $88.00 related to
his appeal. Doc. 11-1, PageID# 226. On May 14, 2014, and on June 16, 2014, the Clerk
again mailed the same “cost statement” to the Petitioner. Id. Respondent has provided

9

a copy of the invoice that the cost statement refers to and which was mailed to the
Petitioner, which indicates that, on January 17, 2014, the Opinion and Judgment Entry
from the Court of Appeals was docketed. Doc. 18-1, PageID# 308. Thus, it appears
likely that by March 18, 2014, Petitioner had notice that the appellate court had
dismissed his appeal in January.
Petitioner indicates that the clerk did not send him a date-stamped copy of the
appellate court’s judgment entry, and therefore he could not have timely appealed.
Doc. 19, PageID# 312. That does not mean, however, that he was not aware by March
18, 2014, that his appeal had been dismissed on some date prior to that, and nothing
prevented him from requesting a copy of the decision and filing a motion for leave to
appeal within forty-five days thereafter.

The record therefore reflects that Petitioner

appears to have waited more than three months after receiving notice that the appellate
court had issued an Opinion and Judgment Entry dismissing his appeal to file his
motion for a delayed appeal. If that is so, he cannot establish prejudice from counsel’s
alleged failure to timely notify him of the appellate court’s decision denying his appeal.
Smith, 463 F.3d at 435.
Even if this factual issue were resolved in Petitioner’s favor, Respondent
correctly notes that Petitioner also procedurally defaulted his claim of the denial of the
effective assistance of appellate counsel concerning notifying him of the disposition of
his direct appeal.
default.

Such claim therefore cannot constitute cause for his procedural

Edwards v. Carpenter, 529 U.S. at 450–51 (the constitutionally ineffective

assistance of counsel may constitute cause for a procedural default, so long as such
10

claim has been presented to the state courts and is not, itself, procedurally
defaulted)(citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). “Smith. . . recognized
that ‘[a] claim of ineffective assistance of counsel must be presented to the state courts
as an independent claim before it may be used to establish cause for procedural
default.’ ” Stout v. Warden, Toledo Correctional Inst., No. 3:12-cv-1415, 2014 WL 1682824,
at *9 (N.D. Ohio April 17, 2014)(citing Bleigh v. Brunsman, No. 2:11-cv-628, 2012 WL
668819, at *12 (S.D. Ohio Feb. 29, 2012) (quoting Smith, 463 F.3d at 436, n. 7); Barkley, 240
F.Supp.2d at 715 (“Because [petitioner] failed to present this claim [of ineffective
assistance of appellate counsel] as an independent claim to the state courts, it cannot
constitute cause for [petitioner's] procedural default of his habeas claim.”). “[A]
petitioner cannot use the ineffective assistance of appellate counsel as cause to excuse a
procedurally defaulted claim when he has failed to present the claim of the
ineffectiveness of appellate counsel as an independent claim or has otherwise
procedurally defaulted that claim.” Tomilinson v. Bradshaw, No. 5:13-cv-1808, 2015 WL
106060, at *17 (N.D. Ohio Jan. 7, 2015)(citing Smith, 463 F.3d at 436; Stout v. Warden,
Toledo Corr. Inst., No. 3:12–CV–1415, 2014 WL 1682824, at *9 (N.D. Ohio, Apr. 17,
2014)(internal quotation omitted)(concluding that the petitioner had procedurally
defaulted his claim of ineffective assistance of appellate counsel by failing to present it
“as a separate claim or as any claim beyond his motion for delayed appeal to the Ohio
Supreme Court.”).
Although Petitioner asserted a claim of the denial of the effective assistance of
appellate counsel in his delayed Rule 26(B) application, the state appellate court denied
11

application for failure to show good cause for the untimely filing. Petitioner did not file
a timely appeal of the appellate court’s decision to the Ohio Supreme Court. Further, he
may now no longer do so, as Ohio does not permit delayed appeals in Rule 26(B)
proceedings. S.Ct.Prac.R. 7.01(A)(4)(c). The state courts were unable to enforce this
procedural rule due to the nature of Petitioner’s procedural default.

Therefore,

Petitioner has waived his claim that he was denied the effective assistance of appellate
counsel based on his attorney’s failure to timely inform him of the appellate court’s
decision denying his appeal.

Further, Petitioner has failed to establish cause and

prejudice for this procedural default.
The United States Supreme Court has held that a claim of actual innocence may
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 (1995). “[I]n an
extraordinary case, where a 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, 477 U.S.
at 496. 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. 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 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).

12

The actual innocence exception allows a petitioner to pursue his constitutional
claims if it is “more likely than not” that new evidence—not previously presented at
trial—would allow no reasonable juror to find him guilty beyond a reasonable doubt.
Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the Sixth Circuit
explained the exception thoroughly in Souter:
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, 395 F.3d at 589–90 (footnote omitted). Petitioner does not meet these standards.
He therefore has waived his claim of the denial of the effective assistance of appellate
counsel and denial of the right to a speedy trial.
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IV. Ineffective Assistance of Trial Counsel
Petitioner asserts that he was denied the effective assistance of trial counsel
because his attorney waived his right to a speedy trial and failed to prepare a defense,
thereby forcing Petitioner to enter a guilty plea (he actually entered a no contest plea,
but that difference is not significant with respect to this claim). Because the same
attorney represented Petitioner at trial and on direct appeal, this claim could properly
have been raised in a petition for post-conviction relief pursuant to O.R.C. § 2953.21.
“Issues which must be raised in a postconviction action pursuant to R.C. § 2953.21
include claims. . . of ineffective assistance of trial counsel where the defendant was
represented on direct appeal by the same attorney who represented him at trial.” Van
Hook v. Anderson, 127 F.Supp.2d 899, 913 (S.D. Ohio 2001)(citing State v. Cole, 2 Ohio
St.3d 112 (1982)). Respondent contends that Petitioner has procedurally defaulted his
claim of the denial of the effective assistance of trial counsel, because Petitioner did not
file a petition for post-conviction relief, and the time period to do so has now expired.
Return of Writ, Doc. 11, PageID# 48.
In Martinez v. Ryan, -- U.S. --, 132 S.Ct. 1309 (2012), the United States Supreme
Court held that the “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner's procedural default of a claim of
ineffective assistance at trial.” Id. at 1315; see Hodges v. Colson, 727 F.3d 517, 530-31 (6th
Cir. 2013). The holding in Martinez applies where, as here, “the initial-review collateral
proceeding is the first designated proceeding for a prisoner to raise a claim of

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ineffective assistance at trial.” Martinez, 132 S.Ct. at 1317. The Supreme Court narrowly
limited its holding in Martinez, stating:
The holding in this case does not concern attorney errors in
other kinds of proceedings, including appeals from initialreview collateral proceedings, second or successive collateral
proceedings, and petitions for discretionary review in a
State's appellate courts. See 501 U.S., at 754, 111 S.Ct. 2546;
Carrier, 477 U.S., at 488, 106 S.Ct. 2639. It does not extend to
attorney errors in any proceeding beyond the first occasion
the State allows a prisoner to raise a claim of ineffective
assistance at trial, even though that initial-review collateral
proceeding may be deficient for other reasons.
Martinez, at 1320. Under Martinez, a federal habeas court may find cause to excuse a
petitioner’s procedural default
where (1) the claim of “ineffective assistance of trial counsel”
was a “substantial” claim; (2) the “cause” consisted of there
being “no counsel” or only “ineffective” counsel during the
state collateral review proceeding; (3) the state collateral
review proceeding was the “initial” review proceeding in
respect to the “ineffective-assistance-of-trial-counsel claim”;
and (4) state law requires that an “ineffective assistance of
trial counsel [claim] ... be raised in an initial-review collateral
proceeding.” Martinez, supra, at ––––, 132 S.Ct., at 1318–1319,
1320–1321.
Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013). “The Sixth Circuit has not finally resolved
whether and how Martinez applies to Ohio ineffective assistance of trial counsel
claims.” Moreland v. Robinson, No. 3:05-cv-334, 2015 WL 127977, at *6 (S.D. Ohio Jan. 8,
2015)(citations omitted). However, the Sixth Circuit has concluded that an attorney’s
failure to advise his client with relevant information regarding the filling of a petition
for post-conviction relief may constitute cause for a petitioner’s failure to pursue a
timely post-conviction petition. Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014). Gunner’s
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attorney failed to advise Gunner of the date of the filing of the trial transcript or of the
deadline for filing a post-conviction petition.

The time period for filing a post-

conviction petition therefore elapsed, and Gunner missed his opportunity to file a
timely petition for post-conviction relief. Id. at 515. The Sixth Circuit held that Gunner
thereby established cause for his procedural default of a claim of ineffective assistance
of trial counsel and remanded the case for consideration of the claim on the merits. The
Sixth Circuit reasoned:
Mr. Long was retained to challenge the judgment of
conviction on appeal. The only viable issue that was
available—the ineffective assistance of trial counsel—had to
be brought in a separate proceeding, and the timing of that
proceeding was integrally related to the filing of the
transcript on direct appeal. Mr. Long knew or should have
known that this proceeding had to be brought within 180
days of the date on which the trial transcript was filed with
the Ohio Court of Appeals, and he also knew that his client
would surely have not known when the trial transcript was
filed or of the necessity to take immediate legal steps. Under
these circumstances, just as the debt collector was obligated
to inform his principal of the necessity to take immediate
legal steps to collect the debt, even though he was not
obligated to take those legal steps, Mr. Long was obligated
to communicate comparable information to petitioner.
Id. at 516-17 (footnote omitted).1
Therefore, it appears that Petitioner may be able to establish cause for his
procedural default in failing to file a timely petition for post-conviction relief.

1

 Effective March 23, 2015, the deadline for filing a petition for post-conviction relief increased from 180
days to no later than 365 days after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of the judgment of conviction or adjudication. O.R.C. § 2953.21(A)(2). Sub. H.B. 663,
130th Gen. Assem.

16

Turning to the merits of the claim, Petitioner asserts that his attorney failed to
prepare for trial, never asked Petitioner about potential defense witnesses who would
have established his actual innocence of the charges, and improperly waived his right to
a speedy trial, thereby forcing Petitioner to enter a guilty plea. Petitioner additionally
asserts that his attorney performed in a constitutionally ineffective manner at
sentencing, by failing to request a hearing on his ability to pay restitution, and failing to
object to imposition of sentences on allied offenses of similar import. Respondent has
not addressed the merits of Petitioner’s claim of ineffective assistance of trial counsel.
V. Recommended Disposition
The Magistrate Judge therefore RECOMMENDS that Petitioner’s claim of the
denial of the right to a speedy trial and the denial of the effective assistance of appellate
counsel be DISMISSED as procedurally defaulted, but that the claim of ineffective
assistance of trial counsel be briefed on the merits.
If this recommendation is adopted, Respondent should be DIRECTED to submit
a supplemental response addressing the merits of Petitioner’s claim of the denial of the
effective assistance of trial counsel within twenty-one days, and Petitioner should be
granted permission to file a response within twenty-one days thereafter.
VI. 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
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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).

/s/ Terence P. Kemp
United States Magistrate Judge

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