Sabo v. Warden London Correctional Institution

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objection and GRANTING Respondent's Motion to Dismiss. Signed by Judge Algenon L. Marbley on 1/5/2017. (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
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
On December 15, 2016, the Magistrate Judge recommended that Respondents’ Motion to
Dismiss (ECF No. 15) be granted and that this action for a writ of habeas corpus under 28 U.S.C.
§ 2241 be dismissed on the basis of Petitioner’s procedural default. Order and Report and
Recommendation (ECF No. 22.) Petitioner objects to that recommendation. Objection (ECF No.
24.) 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. 24) is OVERRULED. The Order and Report and
Recommendation (ECF No. 22) is ADOPTED and AFFIRMED. Respondent’s Motion to
Dismiss (ECF No. 15) is GRANTED.
Petitioner is serving a consecutive term of life imprisonment with parole eligibility after
20 years and a term of 7-25 years’ incarceration, as a result of his 1985 no contest plea to one
count of complicity to aggravated murder and one count of complicity to attempted aggravated
murder in the Athens County Court of Common Pleas.

Petitioner does not challenge his

underlying judgments of conviction, but instead challenges the Ohio parole board’s June 2003
and August 2011 denials of his release on parole. Petitioner’s next parole hearing is scheduled to

occur in August 2021. Petitioner presents fifteen claims for relief based on the Parole Board’s
alleged unconstitutional application of new or revised parole guidelines, thus violating the Ex
Post Facto Clause, acting in breach of Petitioner’s plea agreement, and violating the Due Process
Clause, the Double Jeopardy Clause, the doctrine of separation of powers, and the Equal
Protection Clause. Petitioner also alleges violations of Ohio law.1 Petitioner presented these
claims to the Franklin County Court of Common Pleas, which dismissed his challenge to the
Parole Board’s actions. Petitioner’s appeal from that judgment was dismissed because Petitioner
failed to file the affidavit required by O.R.C. § 2969.25(A).2 The Ohio Supreme Court declined
to accept Petitioner’s subsequent appeal from that dismissal. As noted supra, the Magistrate
Judge recommended that Petitioner’s claims be dismissed as procedurally defaulted.
In an argument raised for the first time in his objections, Petitioner contends that he has
established cause, or excusable neglect, for his failure to timely submit the required affidavit to
the state appellate court. He refers to his pro se and incarcerated status and to his limited access
to the prison’s law library. Petitioner also represents that, after he had filed his appeal, he
submitted an affidavit to the state appellate court in a document entitled Appellant[’]s Reply to
Appellees Motion to Dismiss and Appellant’s Motion for Excusable Neglect for Filing his
Affidavit of Prior Actions per 2969.25 and Six Month Demand Statement Late. Objection (ECF
No. 24, PageID# 926, 927.) In that document, Petitioner stated that he had submitted his
affidavit to prison officials for delivery to the prison’s cashier office, but that he had “no control
over how fast institutional Staff process Legal paper work” or weather related issues that affected

1

As noted by the Magistrate Judge, to the extent that Petitioner alleges the violation of Ohio law, such claim does
not offer a basis for federal habeas relief. See 28 U.S.C. § 2241(c)(3); § 2254(a).
2
O.R.C. § 2969.25(A) requires that an inmate who commences a civil action or appeal against a government entity
or employee file an affidavit that describes each civil action or appeal of a civil action filed by the inmate in any
state or federal court in the previous five years.

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prison movement; he also represented that he had limited access to the prison’s law library. Id.
(PageID# 928.)
A habeas petitioner who has committed a procedural default before the state courts may
nevertheless secure federal review of his federal claims if he can demonstrate cause for the
procedural default and actual prejudice resulting from the alleged constitutional error. Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982). However, it is the
petitioner’s burden to show cause and prejudice sufficient to overcome the 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).
“‘Cause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed
to him [;]. . . some objective factor external to the defense [that]
impeded. . . efforts to comply with the State's procedural rule.”
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003) (quoting Coleman v. Thompson, 501 U.S.
722, 753 (1991)). Petitioner has failed to meet this standard here.
“Courts have held repeatedly that a petitioner's pro se incarcerated status, limited access
to the prison law library, or ignorance of the law and state procedural requirements do not
constitute cause sufficient to excuse a procedural default.”

Watkins v. Warden, Dayton

Correctional Institution, No. 2:16-cv-00501, 2016 WL 4394138, at *3 (S.D. Ohio Aug. 18,
2016)(citing Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir 2004)(citing Hannah v. Conley, 49
F.3d 1193, 1197 (6th Cir. 1995)); Crosby v. Warden, London Correctional Facility, No. 1:12–
cv–523, 2013 WL 5963136, at *5 n. 2 (S.D. Ohio Nov. 7, 2013). The state appellate court
expressly dismissed Petitioner’s appeal because of Petitioner’s failure to submit his affidavit, as
required by Ohio law, at the time he commenced the appeal. See Decision and Entry (ECF No.

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15-6, PageID# 851.) Moreover, nothing in the record suggests that Petitioner could not have
submitted his affidavit at the time that he filed his appeal.
For these reasons and for the reasons discussed in the Magistrate Judge’s Order and
Report and Recommendation, Petitioner’s Objection (ECF No. 24) is OVERRULED. The
Order and Report and Recommendation (ECF No. 22) is ADOPTED and AFFIRMED.
Respondent’s Motion to Dismiss (ECF No. 15) is GRANTED.

This action is hereby

DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

DATED: January 5, 2017

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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