Singh v. Warden Belmont Correctional Institution

Filing 10

REPORT AND RECOMMENDATION that 3 Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED. Objections to R&R due by 3/9/2017. Signed by Magistrate Judge Terence P. Kemp on 2/23/2017. (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
GURWINDER SINGH,

CASE NO. 2:16-CV-205

Petitioner,
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP
v.
WARDEN, BELMONT
CORRECTIONAL INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254. This matter is before the Court on the Return of Writ (Doc.
7) and two replies filed by Petitioner (Docs. 8 and 9). Except for the typeface, the replies
appear to be identical to each other. For the reasons that follow, the Magistrate Judge
RECOMMENDS that the petition be DENIED and that this action be DISMISSED.
I. Facts and Procedural History
According to the Petition and the exhibits attached to the Return, Petitioner was
indicted by the Logan County, Ohio grand jury on March 12, 2013, on one count of rape,
one count of kidnaping, and one count of disrupting public service. Doc. 7, Ex. 1. Those
charges arose out of an incident which occurred on February 25, 2013, at the gas station
where Petitioner lived and worked, and where he allegedly sexually assaulted a female
friend who was visiting him after closing hours. The entire incident was overheard by a
911 operator whom the victim had called. Although Petitioner allegedly knocked the

victim’s cell phone out of her hands before the assault, the line was left open, and the
operator was able to listen to the assault as it occurred. The victim also testified at trial that
Petitioner touched her breasts and had intercourse with her without her permission, and
that he forcibly restrained her while that happened.
Petitioner initially pleaded guilty to the rape charge and was sentenced to five
years in prison. Id., Exs. 4 and 5. However, he then moved to withdraw his plea, and
although the trial court denied that motion, the state court of appeals reversed and
remanded the case so that Petitioner could withdraw his plea and proceed to trial. See
State v. Singh, 2014 WL 3827583 (Logan Co. App. Aug. 4, 2014).
Petitioner did proceed to trial and was found guilty by a jury of gross sexual
imposition, a lesser included offense of rape, and of kidnaping. The offenses were merged
for sentencing purposes and Petitioner was sentenced to nine years of imprisonment on
the kidnaping charge. Doc. 7, Ex. 16. He appealed his conviction and sentence, raising the
following assignments of error:
FIRST ASSIGNMENT OF ERROR:
The Trial Court Abused Its Discretion When It Refused to Instruct the Jury on the
Lesser Included Offenses of Abduction and Unlawful Restraint.

SECOND ASSIGNMENT OF ERROR:
Defense Counsel Performed Deficiently and
Counsel’s
Deficient Performance.

THIRD ASSIGNMENT OF ERROR:
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Appellant Was Prejudiced by

The Trial Court Erred When It Imposed Costs and Additional Fees In Its Sentencing
Entry.
Doc. 7, Ex. 18. In a decision filed on October 5, 2015, the Third District Court of Appeals
sustained the third assignment of error but overruled the first two. State v. Singh, 2015 WL
5782075 (Logan Co. App. Oct. 5, 2015). Petitioner sought, but was denied, review by the
Ohio Supreme Court. State v. Singh, 144 Ohio St.3d 1478 (Feb. 10, 2016).
On February 29, 2016, Petitioner signed this federal habeas corpus petition, and it
was filed on March 9, 2016. Doc. 3. In it, he raises these claims, in these words:
Ground One: Effective Assistant of Counsel to interview and investigate the
allegation by interviewing the trial counsel with the investigation format to
review the prosecutor trial was based upon only the police report and a
supposed phone call the victim informed the Police the victim did not want
the assistance as initially called for. The victim informed the arresting officer
the victim wanted nothing from the Police and wanted only to go home. The
police requested the victim to visit them.
Ground Two: Evidence by lack of the necessary evidence to prosecute other
than the official Police report determines the prosecution violated trial
procedure and prosecuted by the use of the public records and the public
report with not other evidence attested by the experts and based only on the
opinion of th Police Officer inquiring the victim to cause a warrant and arrest
for action the victim had inform the officer victim did not was tot pursue.
In the Return, Respondent argues that both grounds for relief were procedurally defaulted
and that they suffer from other deficiencies as well. The Court will turn first to the issue
of procedural default.
II. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the

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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).
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
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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 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).
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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 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
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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 v. Colson, 727
F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)).
A. Ground One
Petitioner’s first ground for relief asserts that he was denied the effective assistance
of counsel at trial. He raised an ineffective assistance of counsel claim as part of his direct
appeal in state court. However, Respondent asserts that he did not raise the same claim

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in his appeal as he is attempting to raise here. If that is so, Petitioner would not have
presented his current ineffective assistance of counsel claim to the state courts, and because
the time for doing so has passed, he would have procedurally defaulted that claim. In
order to see if Respondent is correct, it is necessary to review the details both of the claim
as Petitioner raised it in state court and as he raises it here.
In his appellate brief (Doc. 7, Ex. 18), Petitioner presented the argument this way.
He phrased the issue as whether counsel was ineffective for failing “to cross examine the
victim concerning her prior history of making 911 calls.” Id. at 15. After pointing out how
crucial the 911 call was to the jury’s verdict and to the judge at sentencing, Petitioner noted
that there was a passing reference made to the fact that the call in question was not the first
one which the victim had made to 911. At sentencing, the prosecutor conceded that there
had been many such prior calls. Petitioner argued that the incident in question had all the
earmarks of a “setup” (the victim had texted Petitioner that she was coming to the station
that evening, and had recently asked him for money) and that the jury should have known
that the victim had a history of reporting abuse to 911. The state court of appeals rejected
this claim, concluding that this evidence -which went only to the victim’s credibility would not likely have influenced the jury given the fact that they were able to hear the
entire incident via the 911 recording. As the court said, “ [g]iven this evidence, any
attempt to argue that the victim has been the alleged victim of many offenses or made up
the offenses would not likely have changed the jury's verdict as to the kidnapping charge.”
State v. Singh, 2015 WL 5782075, *5.
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The facts which the Petition recites in support of the ineffective assistance of counsel
claim are somewhat hard to decipher, but one thing is clear: no mention is made of any
failure on the part of trial counsel to cross-examine the victim at trial about prior 911 calls.
It seems that Petitioner is now asserting that the victim initially told police that she did not
want to press charges but that she was somehow “entrapped” into doing so. He asserts
that counsel should have investigated this matter further. Whether or not that is so,
Petitioner did not raise this claim in his direct appeal to the Third District, nor does this
argument appear in his pro se memorandum in support of jurisdiction filed with the Ohio
Supreme Court. See Doc. 7, Ex. 26.
A habeas corpus petitioner may not properly base an ineffective assistance of
counsel claim on one set of facts or theories when the claim is presented to the state courts,
and then change facts or theories when bringing that claim to federal court. As this Court
said in Jamison v. Collins, 100 F.Supp.2d 521, 550 (S.D. Ohio 1996), “[a] legal theory urged
in a habeas petition that is different than what was raised in the state court briefs does not
satisfy the ‘fair presentation’ requirement.” Otherwise, a petitioner could advance new
theories in federal court about how counsel was ineffective, and potentially obtain relief,
while depriving the states courts of the chance to correct their own errors. As Jamison also
holds, the failure to present a particular theory of ineffective assistance of counsel to the
trial courts is a procedural default which can only be excused if there is both cause for the
default and prejudice to the Petitioner. Neither is evident here. Nor has Petitioner made
any argument that he is factually innocent of the crime. Under these circumstances, the
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Court cannot grant him relief on Ground One.
B. Ground Two

Again, it is not entirely clear what constitutional claim Petitioner has raised in
ground two. He appears to argue that there was not enough evidence to justify a
prosecution because the victim told police she did not want to pursue criminal charges.
He appears to claim that, during her interviews by police, she denied having been
raped or kidnaped. He could be asserting that there was no probable cause for his
arrest, which is a Fourth Amendment claim, or that the evidence was insufficient to
support his conviction, which is a Fourteenth Amendment Due Process claim
It does not matter which of these claims he is raising, however. In the state court
of appeals, apart from the ineffective assistance of counsel claim, Petitioner sought
reversal on grounds that the trial court abused its discretion by refusing to give jury
instructions on certain lesser-included offenses. He also made an argument about court
costs and other financial penalties, which the State conceded, but that argument has
nothing to do with the validity of his conviction or sentence. He never mentioned the
facts or the legal theories which he is now presenting to this Court as Ground Two.
This, too, is a procedural default. To the extent that these claims rely on evidence
of record, they had to be presented to the Ohio courts by way of direct appeal. To the
extent they do not, they may have properly been included in a post-conviction petition.
He can no longer pursue relief by way of direct appeal because that process has
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concluded, and any post-conviction petition filed under O.R.C. §2953.21 has to be filed
within 365 days of the date that the transcript is filed on direct appeal. Any postconviction petition would be untimely. Consequently, Petitioner has both forfeited the
right to pursue relief on these grounds in the state courts and, as a result, has
procedurally defaulted this claim for purposes of federal habeas corpus. See, e.g.,
Peoples v. Moore. 2008 WL 2498136 (S.D. Ohio June 18, 2008)(holding claim to be
procedurally defaulted when it was not raised in a timely motion under §2953.21).
Again, he has advanced no grounds to excuse that default nor submitted new evidence
supporting a claim of actual innocence. Petitioner is therefore entitled to no relief on
Ground Two. That being so, his petition must be dismissed.
III. Recommended Disposition
For the reasons set forth above, the Court RECOMMENDS that the petition for a
writ of habeas corpus be DENIED and that this action be DISMISSED,
IV. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days of the date of this report, file and serve on all parties written objections
to those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A judge of this Court shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. Upon proper objections, a judge of this Court
may accept, reject, or modify, in whole or in part, the findings or recommendations made
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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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