Hunter v. Warden, Ross Correctional Institution

Filing 10

OPINION and ORDER adopting and affirming 8 the Report and Recommendation. Signed by Judge Michael H. Watson on 5/10/17. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PETER A. HUNTER,

Petitioner,
Case No. 2:16-cv-506
JUDGE MICHAEL H. WATSON

V.

Magistrate Judge King
WARDEN, ROSS
CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On April 25,2017, the Magistrate Judge recommended that the petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed without
prejudice as unexhausted, unless Petitioner notified the Court that he wishes to

delete his unexhausted claim of constitutional Insufficiency of the evidence and
proceed solely on his remaining, exhausted, claims. Report and
Recommendation, EOF No. 8. Petitioner objects to that recommendation.

Objection, EOF No. 9. Pursuant to 28 U.S.C. § 636(b), this Court has conducted
a de novo review. For the reasons that follow, Petitioner's Objection, ECF No. 9,
is OVERRULED. The Report and Recommendation, ECF No. 8, is ADOPTED

and AFFIRMED. Petitioner shall notifythe Court, within fourteen (14) days, if he
wishes to delete his unexhausted claim of constitutional insufficiency of the
evidence and proceed on his remaining, exhausted, claims. Petitioner's failure to

so notify the Court will result In the dismissal of this action, without prejudice, as
unexhausted.

The record establishes that Petitioner raised a claim of Insufficiency of the

evidence on direct appeal. Petitioner did not, however, pursue an appeal from
that decision to the Ohio Supreme Court. As the Magistrate Judge noted.
Petitioner may still pursue a motion for a delayed appeal from that decision to the

Ohio Supreme Court. See Ohio S. Ct. Prac. R. 7.01(A)(4). Accordingly,
Petitioner has not exhausted this claim.

In his objections, Petitioner Insists that he exhausted his claim of
Insufficiency of the evidence by presenting that claim In an application to reopen
the appeal pursuant to Ohio Appellate Rule 26(B). He maintains that he can no
longer file an appeal regarding that claim In the Ohio Supreme Court, and he

therefore requests a ruling on the merits of all his claims. However, a claim of
Insufficiency of the evidence Is not properly presented to the state courts In Rule

26(B) proceedings because those proceedings address only claims of the
Ineffective assistance of appellate counsel. Although Petitioner argued In his
Rule 26(B) application that his appellate attorney had performed In a
constitutionally Ineffective manner by falling to raise a claim regarding the

Insufficiency of the evidence, the appellate court denied Petitioner's Rule 26(B)
application, noting that "appellate counsel did challenge the sufficiency of the
evidence and a review of our decision reveals that this court addressed such

challenge." Memorandum Decision, ECF No. 6-1, PagelD# 247 (emphasis In the
Case No. 2:16-cv-506

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original), in his notice of appeal from that decision, Notice ofAppeal, ECF No. 61, PagelD# 254, Petitioner explicitly indicated that he intended to appeal the
appellate court's decision denying his Rule 26(B) application. Id. (PagelD# 255;

257). However, because this claim was not properly raised in a Rule 26(B)
application and because Petitioner may yet pursue a motion for a delayed appeal
to the Ohio Supreme Court from the appellate court's denial of this claim in his

direct appeal, this claim remains unexhausted.

Petitioner's Objection, ECF No. 9, is OVERRULED. The Report and
Recommendation, ECF No. 8, is ADOPTED and AFFIRMED. Petitioner shall

notify the Court, within fourteen (14) days. If he wishes to delete his unexhausted

claim of constitutional insufficiency of the evidence and proceed on his
remaining, exhausted, claims. Petitioner's failure to so notify the Court will result
In the dismissal of this action, without prejudice, as unexhausted.
IT IS SO ORDERED.

ICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:16-cv-506

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