Wampler v. Warden, Chillicothe Correctional Institution

Filing 13

REPORT AND RECOMMENDATION that the Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED. Objections to R&R due by 4/5/2017. Signed by Magistrate Judge Terence P. Kemp on 3/22/2017. (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
DAVID WAMPLER,
CASE NO. 2:15-CV-2514
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE KEMP

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

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this action seeking a writ of habeas corpus
pursuant to 28 U.S.C. §2254.

This matter is before the Court on the Petition,

Respondent’s Return of Writ (Doc.6), Petitioner’s Reply (Doc. 10) the Supplement to
Petitioner’s Traverse (Doc. 12), and the exhibits of the parties. For the reasons that follow,
the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural
history of this case as follows:
On July 6, 2011, appellant lived on 522 East Mulberry Street
in Lancaster, Ohio, with Howard Crane and Rose Bennett.
He spent the evening of July 6 drinking and visiting next
door at the home of Kathy Clum. Rose Bennett's daughter
Barbie and her boyfriend Chip were also at Clum's house.
Appellant began to accuse Barbie of cheating on Chip, and
appellant called Barbie names. Kathy became upset with
appellant. The two engaged in an argument, during which
appellant said to Kathy, “I'm going to fuck you up.” Chip
physically picked appellant up and removed him from the
back yard. Upon returning home, appellant told Rose

Bennett that he was going to “get the bitch,” referring to
Kathy, and he was going to “burn it down.”
At 12:56 a.m. on July 7, 2011, Kathy was sitting on her front
porch when she heard an explosion. Rose noticed flames
coming from Kathy's garage. Rose and Howard ran next
door to alert Kathy to the fire, and helped her remove items
from the garage.
The fire began to spread to the house which was about 13–15
feet away, melting the siding. Shortly thereafter, fires were
reported at two homes behind Kathy Clum's home on
Mulberry street. The fire at one home was started by lighting
a lattice attached to the porch. The flames began climbing to
the second story. At the time of the fire, Jason Uhl was
asleep upstairs. When firefighters arrived on the scene, Uhl
was coming out of the house, having been awakened by a
phone call from his girlfriend and by pounding on his door.
The third fire was started when a seat cushion on the porch
furniture was set on fire. Gina Getz was home when the fire
started. During this same time period of approximately 45
minutes, three vehicles parked a short distance from the
house fires were set on fire and completely destroyed.
The next day, police arrested appellant on a probation
violation warrant. They found him hiding in a closet in his
residence. Although appellant had told Howard Crane he
was staying inside after the argument with Kathy, he
admitted that he was walking around outside during the
time of the fires. In fact, video surveillance from a bank
recorded appellant walking in the area of the fires during the
time period in which the fires were set.
Appellant was charged in a 16–count indictment with four
counts of aggravated arson, one count of attempted arson,
ten counts of arson and one count of theft. The theft charge
and several of the counts of arson related to events which
occurred on October 18, 2011.
The case proceeded to jury trial in the Fairfield County
Common Pleas Court. At trial, fire inspector Jason Coy
testified that the pattern of fires set on July 7, 2011, was
consistent with a “spree arsonist,” where three or more fires
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are set with no cooling off period, with the arsonist typically
having a motive for setting the first fire. Coy described how
by walking the route of the fires set on July 7, 2011, he
concluded that one person could have set all the fires. He
further testified that the video showing appellant walking by
a bank at 1:10 a.m. corresponded to appellant's approximate
location if he walked from the house fires set at 1:07 to the
car fires reported at 1:13 a.m. Coy testified that the fires all
were consistent with being set with the flick of a lighter with
no accelerant. Crane testified that appellant smoked, and
carried a Bic lighter with him.
Following trial, appellant was convicted of four counts of
aggravated arson, one count of attempted aggravated arson,
and four counts of arson, all related to the fires set on July 7,
2011. He was acquitted of the remaining charges, including
all charges related to fires set on October 18, 2011. The court
merged counts one and two and sentenced appellant to eight
years incarceration on count one. The court sentenced
appellant to five years incarceration for count three, and 18
months each for counts four, five, six and seven. The court
merged counts eight and nine and sentenced appellant to
nine years incarceration. The court ordered all sentences to
run consecutively. Appellant assigns five errors on appeal to
this Court:
“I. DEFENDANT–APPELLANT WAS DENIED A SPEEDY
TRIAL UNDER OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS.
“II. THE CONVICTION WAS BASED UPON
INSUFFICIENT EVIDENCE AND OTHERWISE AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE
CONTRARY TO OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS.
“III. DEFENDANT–APPELLANT WAS DENIED A FAIR
TRIAL BY THE IMPROPER JOINDER OF OFFENSES
CONTRARY TO OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS.

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“IV. DEFENDANT–APPELLANT WAS DENIED DUE
PROCESS BY A SENTENCE CONTRARY TO OHIO LAW
AND THE STATE AND FEDERAL CONSTITUTIONS.
“V. DEFENDANT–APPELLANT WAS DENIED THE
EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO
THE STATE AND FEDERAL CONSTITUTIONS
State v. Wampler, No., 2014 WL 80196, at *1-2 (Ohio App. 5th Dist. Jan. 2, 2014). On
January 2, 2014, the appellate court affirmed the judgment of the trial court. Id. On
May 28, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal.
State v. Wampler, 139 Ohio St.3d 1404 (Ohio 2014). On May 19, 2014, Petitioner filed a
motion for a delayed appeal with the Ohio Supreme Court. (Doc. 6-1, Exhibit 25.) On
July 9, 2014, the Ohio Supreme Court denied Petitioner’s motion for leave to file a
delayed appeal. State v. Wampler, 139 Ohio St.3d 1470 (Ohio 2014). On April 2, 2014,
Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule
26(B).

(Exhibit 27.)

On May 20, 2014, the appellate court denied the Rule 26(B)

application. (Exhibit 28.) Thereafter, on August 5, 2014, Petitioner filed a Motion for
Discovery. (Exhibit 29), and Motions for Disclosure of and Specific Request for
Exculpatory and Impeachment Evidence. (Exhibit 30.) On October 17, 2014, the trial
court denied Petitioner’s motions. (Exhibit 33.) None of these latter motions was the
subject of an appeal.
On July 1, 2015, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He asserts that he was denied the effective assistance of
counsel (claim one); that the evidence is constitutionally insufficient to sustain his
conviction and that his conviction is against the manifest weight of the evidence (claim
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two); that he was denied a fair trial due to the improper joinder of offenses (claim
three); and that he was denied due process because his sentence contravenes Ohio law
and the State and Federal Constitutions (claim four).

It is the position of the

Respondent that all of Petitioner’s claims must be dismissed as procedurally defaulted.
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, 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
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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 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
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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
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
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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
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

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v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96
(1986)).
Here, Petitioner asserts in claim one that he was denied the effective assistance of
counsel. In claim two, he asserts that the evidence is constitutionally insufficient to
sustain his convictions and that his convictions are against the manifest weight of the
evidence. In claim three, he asserts that he was denied a fair trial due to the improper
joinder of offenses. In claim four, he asserts that he was denied due process because his
sentence contravenes Ohio law and the State and Federal Constitutions. Petitioner
properly raised all of the foregoing claims on direct appeal to the Fifth District Court of
Appeals, and that court ruled on them. The problem here, however, is that Petitioner,
when he took the next appeal to the Ohio Supreme Court, did not raise any of them.
The only claim he presented to that court was that he was convicted in violation of
Ohio’s speedy trial statutes. (Doc. 6-1, Ex. 20.) Once an Ohio defendant has taken an
appeal to the Ohio Supreme Court, he cannot appeal again; a second appeal (or any
other effort to raise these claims) would be dismissed under 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.). That means that
Petitioner did not give the Ohio courts a full opportunity to correct any errors relating
to the claims he is presenting here.
The Court does have to determine, under Maupin, if Ohio's doctrine of res judicata
is adequate and independent reason why the state courts would no longer entertain
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Petitioner’s claims. 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 (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
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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.
All of this means that, by not asking the Ohio Supreme Court to take a second
look at these issues, Petitioner procedurally defaulted his claims for federal habeas
corpus review. He could get a federal court to review of his claims on the merits if he
could demonstrate cause for his failure to follow the state procedural rules, as well as
actual prejudice from the constitutional violations that he alleges. See Coleman, 501 U.S.
at 753; Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). To show “cause” for such a
default, only a handful of valid reasons can be argued, and none of them appear to
apply here. The default happened when Petitioner’s counsel filed the memorandum in
support of jurisdiction in the Ohio Supreme Court and left out these claims. Any failure
on counsel’s part at that stage of the case does not rise to the level of “cause.” Although
an attorney’s performance can be so deficient that it violates the United States
Constitution’s guarantee of effective counsel,

that rule does not apply to counsel’s

performance at the level of a discretionary appeal. A defendant in Ohio has no right to
the assistance of counsel in his discretionary appeal to the Ohio Supreme Court. See
Barkley v. Konteh, 240 F.Supp.2d 708, 714 (N.D. Ohio Dec. 13, 2002)(citing Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987)(“[T]he right to appointed counsel extends to the first
appeal of right, and no further”). Consequently, even if counsel made an error at that
point, that error will not excuse the defendant from having to present his claims to the
state courts in order to preserve them for federal habeas corpus review.

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Actual innocence is another reason why a procedural default can be excused.
However, the Court’s independent review of the record does not show that Petitioner is
actually innocent or the victim of a manifest miscarriage of justice. Petitioner presents
no new reliable evidence establishing his factual innocence of the charges against him.
Further, the record does not indicate that this case is of that rare or extraordinary type
that justifies a merits review of his otherwise procedurally defaulted claims. See Souter
v. Jones, 395 F.3d 577, 589 (6th Cir. 2005) (footnote and citations omitted); see also
McQuiggin v. Perkins, ___ U.S. ____, 133 S.Ct. 1924, 1931–32 (2013). Since the claims
raised here were not properly presented to the state courts, and there is no basis for
excusing Petitioner for that failure, this Court cannot consider the merits of any of his
claims, let alone grant him a writ of habeas corpus.
Recommended Disposition
For all of these reasons, the Magistrate Judge RECOMMENDS that the petition
for a writ of habeas corpus be DENIED 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
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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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