Taulbee v. Warden Madison Correctional Institution

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objection; DISMISSING petition for a writ of habeas corpus; DENYING Petitioner's Motion to Compel Discovery and/or Expand the Record. The Clerk is directed to enter Final Judgment. Signed by Judge Algenon L. Marbley on 6/13/2017. (cw)(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
RYAN T. TAULBEE,
CASE NO. 2:16-CV-511
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth A. Preston Deavers

Petitioner,
v.
RHONDA R. RICHARD, WARDEN,
Respondent.

OPINION AND ORDER
On May 3, 2017, the Magistrate Judge issued an Order and Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed, and that Petitioner’s Motion to Compel Discovery and/or Expand the Record be
denied as moot. (ECF No. 19.) Petitioner has filed an Objection to the Magistrate Judge’s Order
and Report and Recommendation. (ECF No. 20.) 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. 20) is
OVERRULED. The Order and Report and Recommendation (ECF No. 19) is ADOPTED and
AFFIRMED. The petition for a writ of habeas corpus is DISMISSED. Petitioner’s Motion to
Compel Discovery and/or Expand the Record (ECF No. 19) is DENIED.
Petitioner challenges his conviction after a jury trial in the Fairfield County Court of
Common Pleas on one count of rape, in violation of O.R.C. § 2907.02(A) (2). He asserts that he
was denied the effective assistance of appellate counsel (claim one); that he was denied the
effective assistance of trial counsel (claims two and three); and that he was denied a fair trial
based on cumulative error. The Magistrate Judge recommended dismissal of Petitioner’s claims
as procedurally defaulted or as failing to provide a basis for federal habeas corpus relief.

Petitioner objects to the Magistrate Judge’s recommendation. He maintains that he acted
diligently in pursuing relief and indicates that he attempted to comply with the State’s procedural
rules and filing deadlines. He claims that he could not have raised his claims regarding the
denial of the effective assistance of trial counsel at trial or on direct appeal, where he was
represented by the same attorney in those proceedings. Additionally, Petitioner argues that his
claim of cumulative error warrants relief because it is based on the unconstitutional admission of
prejudicial evidence.
However, as discussed by the Magistrate Judge, the United States Court of Appeals for
the Sixth Circuit has held that cumulative error claims do not provide a basis for habeas corpus
relief. Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (citing Moore v. Parker, 425
F.3d 250, 256 (6th Cir. 2005)). This Court is bound by that ruling. Moreover, Petitioner waived
his claim of cumulative error by failing to present such issue to the state appellate court. He
waived his claim of the denial of the effective assistance of appellate counsel by failing to file a
timely application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Petitioner’s
attempt to act diligently or comply with the State’s filing deadlines and procedural rules simply
does not establish cause for his procedural defaults. Finally, and despite Petitioner’s argument to
the contrary, where a criminal defendant is represented by the same attorney at trial and on direct
appeal, claims of the denial of the effective assistance of trial counsel are properly raised in a
petition for post-conviction relief pursuant to O.R.C. § 2953.21. See Cowans v. Bagley, 236
F.Supp.2d 841, 855 (S.D. Ohio 2002) (citing State v. Cole, 2 Ohio St.3d 112 (1982)). Petitioner
waived his claims of the denial of the effective assistance of trial counsel by failing to present
such issues to the state courts in such proceeding. Petitioner likewise has failed to establish
cause and prejudice for his procedural defaults, and the record does not indicate that he can

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establish that he is actually innocent so as to permit a merits review of his procedurally defaulted
claims. Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
For these reasons and for the reasons detailed in the Magistrate Judge’s Order and Report
and Recommendation, Petitioner’s Objection (ECF No. 20) is OVERRULED. The Order and
Report and Recommendation (ECF No. 19) is ADOPTED and AFFIRMED. The petition for a
writ of habeas corpus is DISMISSED. Petitioner’s Motion to Compel Discovery and/or Expand
the Record (ECF No. 19) is DENIED.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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