Sabo v. Warden London Correctional Institution

Filing 22

ORDER AND REPORT AND RECOMMENDATIONS. It is RECOMMENDED that Respondents' Motion to Dismiss (ECF No. 15 ) be granted and that this action be dismissed. Petitioner's Motion to Renew (ECF No. 20 ) is DENIED. Objections to R&R due by 12/29/2016. Signed by Magistrate Judge Norah McCann King on 12/15/2016. (pes)(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

LARRY SABO,
Petitioner,
Case No. 2:16-cv-536
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

v.
WARDEN, LONDON CORRECTIONAL
INSTITUTION, et al.,
Respondents.

ORDER AND
REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action under 28 U.S.C.
§ 2241, challenging the denial of his release on parole. This matter
is now before the Court on the Petition (ECF No. 3), Respondents’
Motion to Dismiss (ECF No. 15), Petitioner’s Response in Opposition
(ECF No. 16), Respondents’ Reply (ECF No. 17), Petitioner’s Surreply
(ECF No. 18), Respondents’ Supplemental Reply (ECF No. 19), and the
exhibits of the parties. Petitioner has also moved to renew motions
that he had earlier filed (i.e., Motion for an Evidentiary Hearing,
Motion to Appoint Counsel, Motion for Class Certification, and Motion
for Discovery) which were previously denied by the Court. See Order
(ECF No. 14). Motion to Renew (ECF No. 20). For the reasons that
follow, it is RECOMMENDED that Respondents’ Motion to Dismiss be
granted and that the Petition be dismissed on the basis of
Petitioner’s procedural default.

In light of that recommendation,

Petitioner’s Motion to Renew is DENIED.

1

In 1985, Petitioner pleaded no contest to one count of complicity
to aggravated murder and one count of complicity to attempted
aggravated murder and was sentenced, on the first count, to a life
term of imprisonment with parole eligibility after 20 years and, on
the second count, to a term of 7 – 25 years’ imprisonment, such
sentences to be served consecutively. See State v. Sabo, 1986 WL 9705,
at 1 (4th Dist. Ct. App., Sept. 5, 1986). Petitioner pursued a number
of challenges to his convictions, but does not challenge those
convictions in this action.
In June 2003, the Ohio Parole Board (“the Parole Board”)
conducted a hearing, following which the Parole Board denied
Petitioner’s release on parole and continued the matter for an
additional 100 months. Ohio Parole Board Decision Sheet (ECF No. 15-9,
PageID# 857). On August 12, 2011, the Parole Board conducted another
hearing, following which the Parole Board again denied Petitioner’s
release on parole and continued the matter for an additional 120
months, or until August 1, 2021. Ohio Parole Board Decision (ECF No.
15-10, PageID# 882). Considering the factors set out in Ohio Admin.
Code § 5120:1-1-07, the Parole Board concluded that “[t]here is
substantial reason to believe that due to the serious nature of the
crime, the release of the inmate into society would create undue risk
to public safety, or that due to the serious nature of the crime, the
release of the inmate would not further the interest of justice or be
consistent with the welfare and security of society.” Id. The Parole
Board articulated the rationale for its decision as follows:
The Board has determined that the inmate is not suitable
for release at this time. The inmate has completed relevant

2

programming and has good vocational skills, as well as good
institutional conduct; however the inmate’s role in the
offenses is very disturbing; weapons involved; male
[victim[ killed-not at release at this time.
Id.
On March 4, 2014, Petitioner filed a civil action in the Franklin
County Court of Common Pleas for declaratory and injunctive relief
against the Ohio Adult Parole Authority and its members, presenting
the same claims as those asserted in this action. Complaint (ECF No.
15-4, PageID# 556-837). That action was dismissed upon the grant of
the State’s motion for judgment on the pleadings. Decision and Entry
(ECF No. 15-5, PageID# 838-50). Petitioner’s appeal from that decision
was dismissed for failure to comply with the procedural requirement of
O.R.C. § 2969.25(A).1 Journal Entry of Dismissal (ECF No. 15-6, PageID#
851). The Ohio Supreme Court declined to accept Petitioner’s
subsequent appeal pursuant to Ohio S. Ct. Prac. R. 7.08(B)(4). Sabo v.
Ohio Adult Parole Authority, 142 Ohio St. 3d 1472 (2015).
The Petition presents fifteen (15) claims for relief, most
challenging the application of new or revised parole guidelines at
Petitioner’s parole hearings: the state trial court committed plain
error when it granted judgment to defendants on Petitioner’s challenge
to the actions of the Ohio Parole Board (claim one); and that the
application of the new or revised guidelines violated the Ex Post
Facto Clause of the United States and Ohio Constitutions (claims two
and eleven); constituted a breach of Petitioner’s plea agreement in

1

O.R.C. § 2969.25(A) requires generally that an inmate who commences a civil
action or appeal against a government entity or employee must file an
affidavit that describes each civil action or appeal of a civil action filed
by the inmate in the previous five years in any state or federal court.

3

violation of the due process clause of the United States and Ohio
Constitutions (claims three and twelve); violated the double jeopardy
clauses of the United States and Ohio Constitutions (claim four);
violated the doctrine of separation of powers embedded in the United
States Constitution (claim five); violated the equal protection clause
of the United States and Ohio Constitutions (claim six); and denied a
state created statutory right under Ohio law, denied Petitioner due
process of law, and denied Petitioner a liberty interest in violation
of the United States and Ohio Constitutions (claims seven, eight,
nine, ten, and thirteen). Petitioner also generally claims that the
application of the new or revised parole guidelines violated the Ohio
Constitution and the United States Constitution (claims 14 and 15).2
Purporting to act on behalf of “all similarly situated inmates”
Petition (ECF No. 3, PageID# 254), as well as on his own behalf,
Petitioner asks that he be granted a new parole hearing “under the
Parole Law/Regulations that were in effect at the time of there [sic]
‘Offenses’” or be granted release from confinement. Id.
Respondents contend that Petitioner’s claims are either
procedurally defaulted or without merit.
Procedural Default
Respondents argue that Petitioner has waived his right to this
2

To the extent that Petitioner’s claims are based on alleged violations
of state law or on alleged error committed by the state court, those claims
cannot form the basis of habeas corpus relief. A federal court may review a
state prisoner's habeas petition only if the petitioner's challenge to his
confinement is predicated on an alleged violation of the Constitution, laws
or treaties of the United States. 28 U.S.C. § 2241(c)(3); § 2254(a). Thus, 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).

4

Court’s consideration of the merits of his claims because he committed
a procedural default in connection with his appeal from the decision
of the Franklin County Common Pleas Court dismissing his challenge to
the denial of parole. In his responses to the Motion to Dismiss,
Petitioner does not address the merits of Respondents’ procedural
default defense. Rather, Petitioner argues that, because Respondents
raised the issue of procedural default in their Motion to Dismiss,
rather than in an answer or return of writ, Respondents have
themselves waived that defense. See generally Response in Opposition
(ECF No. 16); Surreply (ECF No. 18). Petitioner is mistaken.
Rules 4 and 5 of the Rules Governing § 2254 Cases in the United
States District Courts expressly authorize the filing of a motion to
dismiss a petition. Moreover, the Advisory Committee Notes make clear
that Rule 4 “permits [a pre-answer motion to dismiss the petition] and
reflects the view that if the court does not dismiss the petition, it
may require (or permit) the respondent to file a motion.” See also
Scott v. Romero, 153 Fed.Appx. 495, 498 (10th Cir. 2005); Pettus-Brown
v. Warden, Correctional Reception Center, 2015 WL 3562196, *3 (S.D.
Ohio June 5, 2015); Johnson v. Mills, 2008 WL 413636 (M.D. Tenn. Feb.
12, 2008).
Morrison v. Mahoney, 399 F.3d 1042 (9th Cir. 2005), upon which
Petitioner relies, does not stand for the proposition that a defense
of procedural default raised in a motion to dismiss a habeas petition,
rather than in a return of writ, will be deemed to have been waived.
The court in Morrison actually held that the state had not impliedly
waived the defense of procedural default, even though that defense had

5

not been raised in the state’s original motion to dismiss. Id. at
1046-47.3
Respondents in this case asserted the defense of procedural
default in their first response to the Petition. This Court therefore
concludes that Respondents did not thereby waive that defense. The
Court will therefore consider the merits of the defense of procedural
default.
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 fairly to present those claims to the highest court of the
state for consideration. 28 U.S.C. § 2254(b), (c); O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). If he fails to do so, but still
has an avenue open to him by which he may present the claims, his
petition is subject to dismissal for failure to exhaust state
remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam);
Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a
procedural default, the petitioner can no longer present his claims to
a state court, he has also waived them for purposes of federal habeas
review unless he can demonstrate cause for the procedural default and
actual prejudice resulting from the alleged constitutional error.

3

In Morrison, the district court had granted the state’s initial motion to
dismiss, which asserted only a statute of limitations argument. That
dismissal was reversed on appeal and, following remand, the state asserted a
procedural default defense in its answer. Holding that “the State’s motion to
dismiss was not a responsive pleading that required the State to raise or
waive all its defenses,” id. at 1047, the Ninth Circuit affirmed the
dismissal of the petition on the basis of procedural default.

6

Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S.
107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a Court must undertake a four-part analysis
when the state argues that a federal habeas claim is precluded 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, the
Court must decide whether the state procedural forfeiture is an
adequate and independent state ground on which the state can rely to
foreclose review of a federal constitutional claim. Id. Finally, if
the Court determines that the petitioner failed to comply with an
adequate and independent state procedural rule, then the petitioner
must demonstrate good cause for his failure to follow the procedural
rule as well as actual prejudice from the alleged constitutional
error. Id. This “cause and prejudice” analysis also applies to failure
to raise or preserve issues for review at the appellate level. Leroy
v. Marshall, 757 F.2d 94 (6th Cir.1985).
As noted, Petitioner failed to provide the affidavit required by
O.R.C. § 2969.25(A) in connection with his direct appeal, and the
state court of appeals dismissed his appeal on that basis. Decision
and Entry (ECF No. 15-6, PageID# 851). The Ohio Supreme Court declined
to accept Petitioner’s subsequent appeal, but articulated no basis for
that decision. Sabo v. Ohio Adult Parole Authority, 142 Ohio St. 3d

7

1472. Under these circumstances, the basis for the dismissal of
Petitioner’s direct appeal must be presumed to be his failure to
comply with the procedural requirement of Ohio law. See Ylst v.
Nunnemaker, 501 U.S. 797 (1991)(the last “reasoned state judgment
rejecting” a federal claim is the determinative decision for purposes
of the procedural default analysis). The first two factors of the
Maupin analysis have therefore been met. Furthermore, Ohio courts have
long enforced this procedural requirement, which in no way relies on
federal law.

See, e.g., State ex rel. Sherrills v. Clerk of Courts of

Franklin County Court of Common Pleas, 92 Ohio St. 3d 402 (2001);
State ex rel. Swingle v. Zaleski, 91 Ohio St. 3d 82 (2001). See also
Hazel v. Knab, 130 Ohio St. 3d 22 (2011). Moreover, Petitioner has
utterly failed to demonstrate cause for his failure to observe Ohio’s
procedural requirement. The Court therefore concludes that all factors
of the Maupin analysis have been met and that Petitioner has waived,
by virtue of his procedural default, this Court’s consideration of the
merits of his claims.
It is therefore RECOMMENDED that Respondents’ Motion to Dismiss
(ECF No. 15) be granted and that this action be dismissed on the basis
of procedural default. In light of that recommendation, Petitioner’s
Motion to Renew (ECF No. 20) is DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.

8

28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

s/ Norah McCann King__ _
Norah McCann King
United States Magistrate Judge

December 15, 2016

9

to