Nelms v. Warden North Central Correctional Institution

Filing 19

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by David Nelms in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 6/1/2017. Signed by Magistrate Judge Norah McCann King on 5/18/17. (sem)(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 NELMS,
Petitioner,
Case No. 2:16-cv-0160
JUDGE GEORGE C. SMITH
Magistrate Judge King

v.
WARDEN, NORTH CENTRAL
CORRECTIONAL COMPLEX,
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 (Doc. 1), Respondent’s Return of
Wri t(Doc. 7), Petitioner’s Traverse (Doc. 17), 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 September 28, 2012, the Delaware County Grand Jury indicted
appellant, David Nelms, on one count of engaging in a pattern of
corrupt activity in violation of R.C. 2923.32, one count of
trafficking in persons in violation of R.C. 2905.32, one count of
trafficking in heroin in violation of R.C. 2925.03, one count of
possession of heroin in violation of R.C. 2925.11, five counts of
compelling prostitution in violation of R.C. 2907.21, and eight
counts of promoting prostitution in violation of R.C. 2907.22.
Fourteen of the counts included a human trafficking specification
pursuant to R.C. 2941.1422.
On February 21, 2013, appellant filed a motion to dismiss for lack
of proper venue, claiming all but one of the alleged offenses did
not occur in Delaware County. A hearing was held on March 15,

2013. By judgment entry filed March 19, 2013, the trial court
denied the motion.
On June 11, 2013, appellant pled no contest to the engaging in a
pattern of corrupt activity and the possession of heroin counts. The
remaining counts, including the specifications, were dismissed. By
judgment entry filed June 12, 2013, the trial court found appellant
guilty. By judgment entry filed June 25, 2013, the trial court
sentenced appellant to an aggregate term of twelve years in prison.
Appellant filed an appeal and this matter is now before this court
for consideration. Assignment of error is as follows:
“THE DELAWARE COUNTY COURT OF COMMON PLEAS
HAD NO SUBJECT MATTER JURISDICTION OVER THIS
CASE BECAUSE THE DELAWARE COUNTY GRAND JURY
HAD NO AUTHORITY TO RETURN AN INDICTMENT FOR
CRIMES COMMITTED IN FRANKLIN COUNTY.”
State v. Nelms, No. 13 CAA 07 0055, 2014 WL 3749429, at *1- (Ohio App. 5th Dist. July 28,
2014). On July 28, 2014, the appellate court affirmed the judgment of the trial court. Id. On
February 18, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State
v. Nelms, 141 Ohio St.3d 1475 (Ohio 2015).
Petitioner also pursued post conviction relief in the state courts:
On April 18, 2014, while his aforesaid direct appeal was pending,
appellant filed a pro se petition for post-conviction relief.
Appellant therein set forth three arguments in support. First, he
alleged his trial counsel was constitutionally deficient for failing to
properly demonstrate to the trial court the alleged lack of venue.
Secondly, he alleged his trial counsel failed to timely file a motion
to suppress evidence obtained via search warrants. Finally, he
alleged trial counsel was not prepared for various hearings,
referencing counsel's motion to withdraw as counsel.
On April 28, 2014, the State filed a memorandum contra
appellant's PCR petition.
On May 20, 2014, appellant filed a “reply motion” regarding the
State's memorandum contra.

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On June 30, 2014, the trial court issued a judgment entry denying
appellant's PCR petition without a hearing.
Appellant filed a pro se notice of appeal on August 1, 2014. That
appeal was designated as case number 14CAA080043 in this
Court. However, via judgment entry dated August 21, 2014, we
dismissed that appeal as untimely under the thirty-day rule of
App.R. 4(A). Appellant, via counsel, sought reconsideration of
said dismissal, which we denied on October 27, 2014.
Appellant, again via counsel, then filed a new notice of appeal on
November 4, 2014 with a request for leave to file a delayed appeal
under App.R. 5(A). On December 15, 2014, this Court granted
leave to appeal under the present case number, 14CAA110073.
Appellant now raises the following sole Assignment of Error:
“I. THE TRIAL COURT VIOLATED THE STATE AND
FEDERAL CONSTITUTIONS, AND R.C. 2953.21, BY
DENYING
APPELLANT'S
PETITION
FOR
POST–
CONVICTION RELIEF WITHOUT FIRST HOLDING AN
EVIDENTIARY HEARING.”
State v. Nelms, No. 14 CAA-11-0073, 2015 WL 4737421, at *1-2 (Ohio App. 5th Dist. Aug. 10,
2015). On August 10, 2015, the appellate court held that the appeal had been improvidently
allowed as untimely in light of the fact that Ohio does not permit delayed appeals in post
conviction proceedings. The state appellate court dismissed the action for want of appellate
jurisdiction. Id. Petitioner apparently did not file an appeal from that decision to the Ohio
Supreme Court.
On February 19, 2016, Petitioner filed the Petition, alleging that he was denied due
process due to the trial court’s lack of jurisdiction (claim one); that he was denied due process
because the trial court dismissed his petition for post conviction relief without holding an
evidentiary hearing (claim two); and that he was denied the right to the effective assistance of
trial counsel because his attorney failed to properly litigate the trial court’s lack of jurisdiction,
failed to file a motion to suppress illegally obtained evidence, and failed to prepare (claim three).
3

Respondent contends that Petitioner’s claims are procedurally defaulted or otherwise fail to
provide a basis for federal habeas corpus relief.
Standard of Review
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the familiar standards of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”) govern this case. The United
States Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court” and emphasized that courts must
not “lightly conclude that a State's criminal justice system has experienced the ‘extreme
malfunction’ for which federal habeas relief is the remedy.” Burt v. Titlow,––U.S.––, 134 S. Ct.
10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559
U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating statecourt rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal
quotation marks, citations, and footnote omitted).
The AEDPA limits the authority of a federal court to issue writs of habeas corpus and
forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated
on the merits in State court proceedings” unless the state court decision either:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). Further, under AEDPA, the factual findings of the state court are presumed
to be correct:

4

In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1). Accordingly, “a writ of habeas corpus should be denied unless the state
court decision was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court, or based on an unreasonable determination of
the facts in light of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741,
748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)).
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Id. at 748–49. The burden of satisfying the standards of the AEDPA rests with the petitioner.
See Cullen v. Pinholster, 563 U.S.170, 181 (2011).
Claim One
In claim one, Petitioner alleges that the trial court lacked subject matter jurisdiction,
because the crimes charges against him occurred in Franklin County. However, a trial court's
determination of the proper venue, or jurisdiction over a case, involves a matter of state – not
federal – law. “[V]enue for criminal proceedings in Ohio is a function of state law.” Harris v.

5

Jeffries, No. 3:06–cv–02887, 2007 WL 3340035, at *5 (N.D.Ohio Nov. 6, 2007) (footnote
omitted) (rejecting same argument presented herein.) “A state court's decision as to proper
venue or jurisdiction generally does not raise a cognizable constitutional claim.” Campa v.
Erwin, No. C–1–03–550, 2005 WL 2313980, at *2 (S.D.Ohio Sept. 21, 2005) (citing Davey v.
Stegall, No. 95–2198, 1996 WL 708336, at * 1 (6th Cir. Dec. 5, 1996); Wellman v. Chapleau,
No. 95–6123, 1996 WL 325212, at * 2 (6th Cir. June 12, 1996)). Thus, Petitioner's jurisdictional
claim fails to present a federal issue and does not provide a basis for habeas relief.
A federal court may review a state prisoner's habeas petition only on the grounds that the
challenged confinement is in violation of the Constitution, laws or treaties of the United States.
28 U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus “on the basis of a
perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848
F.2d 735, 738 (6th Cir.1988). A federal habeas court does not function as an additional state
appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845
F.2d 610, 614 (6th Cir.1988). “‘[F]ederal courts must defer to a state court's interpretation of its
own rules of evidence and procedure’“ in considering a habeas petition. Id. (quoting Machin v.
Wainwright, 758 F.2d 1431, 1433 (11th Cir.1985)).
Further, although Petitioner attempts to couch this claim in federal terms, he failed to do
so in the state appellate court. There, he argued only that the trial court lacked jurisdiction under
the provisions of Ohio law. See Appellant’s Brief (ECF No. 7-1, PageID# 226-230). The state
appellate court likewise addressed the claim only in terms of the alleged violation of state law:
Appellant claims the trial court lacked subject matter jurisdiction
as the crimes alleged were committed in Franklin County, not
Delaware County. We disagree.
On February 21, 2013, appellant filed a motion to dismiss for lack
of proper venue, claiming the crimes were not committed in
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Delaware County and seeking a change of venue. Appellant argued
with the exception of a single count, the offenses occurred in
Franklin County, and the facts do not support a “course of criminal
conduct” theory for establishing venue under R.C. 2901.12(H)
which states the following:
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be
tried for all of those offenses in any jurisdiction in which one of
those offenses or any element of one of those offenses occurred.
Without limitation on the evidence that may be used to establish
the course of criminal conduct, any of the following is prima-facie
evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
(2) The offenses were committed by the offender in the offender's
same employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender's line of travel
in this state, regardless of the offender's point of origin or
destination.
The state argues Count 1, engaging in a pattern of corrupt activity
in violation of R.C. 2923.32, has already been reviewed in light of
the venue issue.
As explained by this court in State v. Yates, 5th Dist. Licking
No.2009 CA 0059, 2009–Ohio–6622, ¶ 51–55:
Appellant was convicted of one count of Engaging in a Pattern of
Corrupt Activity, one count of Theft, one count of Possession of
Criminal Tools, and one count of Forgery. Pursuant to R.C.
2901.12(H), if these offenses constitute a course of criminal
conduct, then venue lies for all those offenses in any jurisdiction in
which Appellant committed any one offense or any element

7

thereof. State v. Giffin (1991), 62 Ohio App.3d 396, 399, 575
N.E.2d 887.
In State v. Giffin, the Tenth District Court of Appeals held that a
prosecution for engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(1) is properly venued in any county
in which a portion of the corrupt activity occurred or in which an
organization formed for the purpose of engaging in corrupt activity
is based. See also, State v. Haddix (1994), 93 Ohio App.3d 470,
638 N.E.2d 1096.
The defendant in Giffin, supra, was convicted of aggravated
burglary, aggravated robbery, theft, and engaging in a pattern of
corrupt activity based upon his activities in a burglary ring that
conducted burglaries in Fairfield, Pickaway, and Pike Counties.
None of the offenses were committed in Franklin County, but the
defendant was tried in Franklin County on those charges.
The evidence from the trial revealed that the hub of the burglary
ring was located in Franklin County.
In finding that venue was proper in Franklin County, although the
defendant was not directly involved in the Franklin County
activity, the Tenth District stated:
“Consequently, if at least one element of one of the offenses
making up the course of criminal conduct was committed in
Franklin County, defendant's trial was properly venued in that
jurisdiction. The elements of a crime are the constituent parts of an
offense which must be proved by the prosecution to sustain a
conviction. Elements necessary to constitute a crime must be
gathered wholly from the statute and not aliunde. State v. Draggo
(1981), 65 Ohio St.2d 88, 91, 19 O.O.3d 294, 295, 418 N.E.2d
1343, 1346.[”]
Appellant entered no contest pleas to one count of engaging in a
pattern of corrupt activity and one count of possession of heroin.
Based upon the sufficiency to establish proper venue, the
remaining counts, as a part of appellant's criminal enterprise, vests
the jurisdiction of Delaware County. In support of this course of
criminal conduct theory, the state cited to fifteen incidents wherein
hotels were rented with appellant's online travel accounts for the
purpose of prostitution. March 15, 2013 T. at 5–6; June 11, 2013
T. at 16–17. The hotels were located in Delaware County. Id. For
each of these, although appellant managed his prostitution
enterprise from Franklin County, his “employees” traveled to
8

Delaware County and then returned to Franklin County to pay
appellant. March 15, 2013 T. at 5–6.
Pursuant to R.C. Chapter 2939 and R.C. 2901.12(H), we find the
trial court's venue and the grand jury's jurisdiction were proper in
Delaware County.
State v. Nelms, 2014 WL 3749429, at *1-3.
Moreover, in order to satisfy the exhaustion requirement in habeas corpus, a petitioner
must fairly present the substance of each claim to the state courts as a federal constitutional
claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971).
Although this fair presentment requirement is a rule of comity, not jurisdiction, see Castille v.
Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), it is
nevertheless rooted in principles of federalism designed to allow state courts the opportunity to
correct the State's alleged violation of a federal constitutional right that threatens to invalidate a
state criminal judgment.
In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any one
of four ways: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
state cases employing federal constitutional analysis; (3) phrasing the claim in terms of
constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional
right; or (4) alleging facts well within the mainstream of constitutional law. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of a constitutional
right, such as the right to a fair trial or to due process, are insufficient to satisfy the “fair
presentment” requirement. Id.
In his appeal before the state appellate court, Petitioner did not rely on any federal or
state cases employing constitutional analysis in support of his claim that the trial court lacked
jurisdiction. As discussed, he raised this claim only in terms of the alleged violation of state law.
9

Therefore, Petitioner has waived any federal issue for this Court’s review. Moreover, Petitioner
has failed to establish cause and prejudice for that waiver.
Claim one fails to provide a basis for relief.
Claim Two
In claim two, Petitioner alleges that the trial court improperly denied his petition for post
conviction relief without conducting an evidentiary hearing. This claim does not offer an
appropriate issue for federal habeas corpus relief. “[T]he Sixth Circuit has consistently held that
errors in post-conviction proceedings are outside the scope of federal habeas corpus review.”
Farrow v. Anderson, No. 1:08CV1429, 2009 WL 3004024, at *5 (N.D. Ohio Sept. 15,
2009)(citing Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002); Kirby v. Dutton, 794 F.2d 245,
246-47 (6th Cir. 1986)). This is because “'the essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and. . . the traditional function of the writ is to
secure release from illegal custody.” Id. (quoting Kirby, 794 F.2d at 246).
It is settled law in the Sixth Circuit that alleged errors in postconviction proceedings, such as the failure to grant evidentiary
hearings, are outside the scope of federal habeas review. Cornwell
v. Bradshaw, 559 F.3d 398, 411 (6th Cir. 2009) (petitioner's claim
that the state court improperly denied him an evidentiary hearing
not cognizable in habeas corpus proceedings); Cress v. Palmer,
484 F.3d 844, 853 (6th Cir. 2007); Kirby v. Dutton, 794 F.2d 245,
247 (6th Cir. 1986) (“We decline to allow the scope of the writ to
reach this second tier of complaints about deficiencies in state
post-conviction proceedings.”).
Johnson v. Lazaroff, No. 1:15CV43, 2016 WL 791609, at *15 (N.D. Ohio Jan. 6, 2016).
Accordingly, Petitioner's claim that the state court erred when it failed to provide him an
evidentiary hearing in post conviction proceedings fails to provide a basis for federal habeas
corpus relief.

10

Procedural Default
Respondent also argues that Petitioner has procedurally default certain of his claims.
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 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

11

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 has been waived by a 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, a 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.

12

Edwards v. Carpenter, 529 U.S. 446, 453 (2000). But 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.’” Id. at 452 (quoting
Murray v. Carrier, 477 U.S. at 479). 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, the petitioner must be able to
“satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself.”
Edwards, 529 U.S. at 450–51. 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)
13

(emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70
S.Ct. 587, 94 L.Ed. 761 (1950)).
Id. at 452–53.
If, after considering all four factors of the Maupin test, the federal habeas court concludes
that a procedural default has occurred, it must not consider the merits of the procedurally
defaulted claim 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. at 495–96).
Claim Three
In claim three, Petitioner alleges that he was denied the effective assistance of counsel
because his attorney failed to file a timely motion to suppress evidence, failed to raise an issue
regarding the trial court’s lack of jurisdiction, and failed to prepare for trial. However, Petitioner
did not allege the denial of the effective assistance of trial counsel in his direct appeal, where he
was represented by new counsel. Further, he may now no longer do so, by operation of 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.). The state courts were never
given an opportunity to enforce the procedural rule due to the nature of Petitioner's procedural
default.
Moreover, Ohio's doctrine of res judicata is adequate and independent under the third
part of the Maupin test. 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, 501 U.S. at 732–33.
To be “adequate,” the state procedural rule must be firmly established and regularly followed by
14

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). The United States Court of Appeals for 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 of the Maupin analysis, the Court

concludes that Ohio's doctrine of res judicata in this context does not rely on or otherwise
implicate federal 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.
To the extent that Petitioner’s claim of ineffective assistance of counsel may rely on
evidence that is not readily apparent from the face of the record, Petitioner also waived that
claim by failing to present it in his petition for post conviction relief, and by failing to file a
timely appeal from the trial court’s denial of his post conviction petition. The state appellate
court explicitly denied his post conviction appeal as untimely:

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However, before we can consider the merits of the within appeal,
we must consider our jurisdiction to further proceed. “Where an
untimely appeal has been filed, an appellate court lacks jurisdiction
to consider the merits, and the appeal must be dismissed.” State v.
Myers, 9th Dist. Wayne No. 08CA0041, 2009–Ohio–2082, ¶ 7.
Appellant herein has tried to overcome the jurisdictional timeliness
barrier of App.R. 4(A) by relying on App.R. 5(A), which allows
for seeking leave to pursue a delayed appeal regarding, inter alia,
“criminal proceedings.” However, the Ohio Supreme Court, in
State v. Nichols (1984), 11 Ohio St.3d 40, 463 N.E.2d 375, held
that a petition for post-conviction relief is a civil action to which an
App.R. 5(A) motion for delayed appeal does not apply.
While we recognize the parties in the case sub judice have already
duly briefed this case, we cannot ignore the clear holding of
Nichols.
Accordingly, we hold the present appeal was improvidently
allowed and must be dismissed for want of appellate jurisdiction.
For the reasons stated in the foregoing opinion, the appeal of the
judgment of the Court of Common Pleas, Delaware County, Ohio,
is hereby dismissed.
State v. Nelms, 2015 WL 4737421, at *2-3. “The inapplicability of delayed appeals under Ohio
App. R. 5(A) for denials of post-conviction relief is firmly established and regularly followed by
Ohio courts.” Wright v. Lazaroff, 643 F.Supp.2d 971, 988 (S.D. Ohio June 25, 2009)(citing
Carley v. Hudson, 563 F.Supp.2d 760, 776 (N.D. Ohio)).
Petitioner may still secure review of the merits of this claim if he demonstrates cause for
his failure to follow the state procedural rules, as well as actual prejudice from the constitutional
violations that he alleges. “[P]etitioner has the burden of showing cause and prejudice to
overcome a procedural default.” Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing
Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation omitted)). But a petitioner's
pro se status, ignorance of the law, or ignorance of procedural requirements are insufficient bases
to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004). Instead, in
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order to establish cause, a petitioner “must present a substantial reason that is external to himself
and cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007).
Petitioner has failed to establish cause for his procedural default. Any claimed denial of the
effective assistance of appellate counsel cannot constitute cause for any procedural default,
because Petitioner has never presented that claim to the state courts. See Edwards, 529 U.S. at
451-52.
The United States Supreme Court has also 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 authorize a federal court in reaching
the merits of an otherwise procedurally defaulted barred habeas petition. Schlup, 513 U.S. at
317. However, the actual innocence claim 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)).
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 as follows:
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong that a court
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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 here.
After an independent review of the record, the Court does not deem this to be so extraordinary a
case as to relieve petitioner of his procedural default
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
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

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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/ Norah McCann King
Norah McCann King
United States Magistrate Judge
May 18, 2017

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