Feely v. Warden Chillicothe Correctional Institution
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus. Magistrate Judge recommends this action be Dismissed. Objections to R&R due by 9/6/2017. Signed by Magistrate Judge Norah McCann King on 08/23/2017. (df)(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
JEFFREY A. FEELY,
Case No. 2:16-cv-619
JUDGE MICHAEL H. WATSON
Magistrate Judge King
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition (Doc. 1) and Petitioner’s Brief in
Support of the Grounds for Relief Submitted on May 28, 2016 (Doc. 6), the Return of Writ (Doc.
7), Petitioner’s “Traverse” in Response to Respondent’s Answer to Petitioner’s “Writ” (Doc.
10)(“Traverse”), and the exhibits of the parties. For the reasons that follow, the Magistrate
Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
Petitioner was indicted by the February 20, 2014, term of the Licking County Grand Jury
on nine (9) counts of gross sexual imposition on a person under the age of thirteen, in violation
of O.R.C. § 2907.05(A)(4). (Doc. 7-1, PageID# 186). On October 3, 2014, Petitioner entered
“Alford Guilty pleas” to the charges against him. (PageID# 196). The trial court imposed an
aggregate term of six years’ incarceration pursuant to the joint recommendation of the parties.
(PageID# 196-97). Petitioner did not file a timely appeal from the judgment of conviction. On
March 11, 2015, and proceeding through new counsel, Petitioner filed a Notice of Appeal and
Motion for Leave of Court to File Delayed Criminal Appeal and Supporting Affidavits (PageID#
201-02). On April 13, 2015, the appellate court denied that motion for a delayed appeal.
Judgment Entry (PageID# 215). On May 15, 2015, the appellate court denied Petitioner’s
motion for reconsideration. Traverse (Doc. 10, PageID# 332, 334). On November 10, 2015, the
Ohio Supreme Court declined jurisdiction of the appeal pursuant to Ohio S.Ct.Prac.R.
7.08(B)(4). Id. (PageID# 236).
On June 28, 2016, and acting without the assistance of counsel, Petitioner filed the
Petition, alleging that he was denied the effective assistance of counsel (claim one); and that the
trial court unconstitutionally in making certain factual findings to enhance his sentence, in
imposing a mandatory term of post release control, in ordering that Petitioner be required to
register as a sexual offender for twenty-five years, and in reviewing the Presentence
Investigation Report prior to Petitioner’s change of plea (claims two through five).1 Respondent
contends that Petitioner procedurally defaulted his claims or waived them by the entry of his
Congress has provided that state prisoners who are in custody in violation of the
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). However, 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.
Petitioner has withdrawn claim six of the Petition. See Petitioner’s Brief in Support of the Grounds for Relief
Submitted on May 28, 2016 (Doc. 6, PageID# 27).
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 present his claim in a way
that gives the state courts a fair opportunity to rule on the federal law claims 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 merits of the claims, 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
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a
federal habeas claim has been 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).
Turning to the fourth part of the Maupin analysis, in order to establish cause, the
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 sufficient 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, 477 U.S. at 479).
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, 529 U.S. at 450–51.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default has occurred, the court must not consider the merits of the procedurally
defaulted claim 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, 477 U.S. at 495–96).
In claim one, Petitioner asserts, inter alia, that he was denied the effective assistance of
trial counsel because his attorney failed to investigate, agreed to a sentence that was contrary to
law and violated the Double Jeopardy Clause, and failed to challenge a defective indictment or
subject the prosecution’s case to adversarial testing. In claim two, Petitioner asserts that the trial
court violated the Sixth Amendment by making factual findings to enhance Petitioner’s sentence.
In claim three, Petitioner asserts that the trial court unconstitutionally imposed a term of post
release control. He also asserts that O.R.C. § 2967.28 is unconstitutional on its face. In claim
four, Petitioner asserts that the requirement in his sentence that he register as a sexual offender
for twenty-five years violates the Eighth Amendment and the Double Jeopardy Clause. In claim
five, Petitioner asserts that the trial court unconstitutionally reviewed the Presentence
Investigation report prior to Petitioner’s change of plea.
Petitioner waived the foregoing claims by the entry of his guilty plea and his agreement
to the imposition of a jointly recommended sentence.
[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. He may
only attack the voluntary and intelligent character of the guilty plea
by showing that the advice he received from counsel was not
within the standards set forth in McMann [v. Richardson, 397 U.S.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Additionally,
[p]re-plea claims of ineffective assistance of trial counsel are
considered nonjurisdictional defects that are waived by a guilty
plea. See United States v. Stiger, 20 Fed.Appx. 307, 309 (6th Cir.
2001); see also Siebert v. Jackson, 205 F.Supp.2d 727, 733–34
(E.D. Mich. 2002) (holding that a habeas petitioner's claims of
deprivations of his constitutional rights that occurred before his
guilty plea, as a result of his trial counsel's alleged ineffective
assistance, were foreclosed by his guilty plea, where he stated at
the plea hearing that he was satisfied with counsel's representation,
and he did not complain of counsel's advice concerning plea
agreement). The petitioner's pre-plea claims of ineffective
assistance of trial counsel have been waived by his guilty plea.
Danner v. Booker, No. 10-11434, 2014 WL 3525071, at *8 (E.D. Mich. July 16, 2014).
Petitioner initialed and signed a Plea Agreement indicating that he understood that, if the
Court imposed a jointly recommended sentence that was authorized by law, his sentence would
not be subject to review on appeal. (Doc. 7-1, PageID# 210). At the time of his guilty plea
hearing, Petitioner agreed to the jointly recommended aggregate mandatory prison sentence of
six years. He agreed to be designated as a Tier II sexual offender. He agreed that the trial court
could make the requisite consecutive findings to impose an aggregate six year mandatory term.
Transcript (Doc. 7-2, PageID# 240). Petitioner therefore has waived his right to claim that the
trial court unconstitutionally imposed this sentence or that his sentence is constitutionally invalid
on these grounds.
As noted, Petitioner indicated that he understood that his plea agreement provided for the
imposition of a jointly recommended or agreed-to sentence, and that if the trial court imposed
that jointly recommended sentence, it would not be subject to review on appeal. (PageID# 24344). Moreover, that result is a requirement of Ohio law:
A sentence imposed upon a defendant is not subject to review
under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the
case, and is imposed by a sentencing judge.
O.R.C. § 2953.08(D). “A jointly recommended sentence is ‘authorized by law’ if the sentence
does not exceed the maximum sentence that the statute permits a trial court to impose.” Kelley v.
Brunsman, 625 F.Supp.2d 586, 601-02 (S.D. Ohio 2009) (citing Rockwell v. Hudson, No. 5:06–
cv–391, 2007 WL 892985, at *6 (N.D.Ohio March 21, 2007) (internal citations omitted).
also Butler v. Warden, Lebanon Correctional Institution, No. 09-4531, 483 Fed.Appx. 102,
unpublished, 2012 WL 1861518 (6th Cir. 2012) (Petitioner waived the right to challenge the
constitutionality of his sentence upon the entry of a sentence imposed pursuant to the joint
agreement of arties in accordance with O.R.C. § 2953.08(D)); Ratleff v. Warden, Chillicothe
Correctional Institution, No. 2:15-cv-00128, 2016 WL 3077532, at *9 (S.D. Ohio June 1, 2016)
(challenge to trial court’s imposition of maximum consecutive terms of incarceration was waived
by the entry of guilty plea and agreement to the imposition of a sentence jointly recommended by
the parties) (citing Cornell v. Jeffries, No. 2:05-CV-958, 2006 WL 2583300, at *8 (S.D. Ohio
Sept. 7, 2006) (petitioner waived the right to appeal his sentence under O.R.C. § 2953.08(D) by
agreeing to the jointly recommended sentence) (internal citations omitted).
Petitioner did retain the right to appeal on the ground that his guilty plea was not
knowingly and voluntarily made. See Stone v. Moore, 2008 WL 4372696, at 6 (S.D. Ohio Sept.
23, 2008)(citing Tollett v. Henderson, 411 U.S. 258, 267 (1973); Kowalak v. United States, 645
F.2d 534, 537 (6th Cir. 1981) (other citations omitted). Additionally, “[a] defendant who pled
guilty may appeal his conviction on grounds that the statute on which his conviction is based is
unconstitutional.” Walker v. Warden, Lake Erie correctional Institution, No. 2016 WL 1019258,
at *5 (S.D. Ohio March 15, 2016)(quoting McIntosh v. Hudson, 632 F.Supp.2d 725, 737038
(N.D. Ohio 2009). “A defendant who pled guilty may appeal a sentence that is contrary to law.
Ohio Rev. Code § 2953.08.” Id. (quoting McIntosh v. Hudson, 632 F. Supp. 2d at 737-38).
However, Respondent argues that Petitioner has nevertheless procedurally defaulted any
of the claims that are not foreclosed by the entry of his guilty plea by failing to file a timely
appeal from his judgment of conviction. The state appellate court denied Petitioner’s motion for
a delayed appeal for failure to establish good cause for the untimely filing:
This  matter comes before the Court upon Appellant’s “Motion
for Leave to File Delayed Appeal.” Appellant seeks to appeal the
trial court’s entry dated October 10, 2014. He avers he did not
timely file a notice of appeal because of his movement between
prisons and because he only recently discovered his sentence might
be “illegal”. . . .
The Supreme Court has held, “If a movant establishes sufficient
reasons justifying the delay, the appellate court may, in its
discretion, grant the motion, and the case proceeds as it would
have if timely filed.” State v. Silsby (2008), 119 Ohio St.3d 370,
Upon consideration, Appellant’s motion is denied.
Judgment Entry (Doc. 7-1, PageID# 215). Further, the United States Court of Appeals has held
that “a Petitioner’s failure to follow Ohio Rule of Appellate Procedure 5(A) can serve as the
basis for a procedural default of a petitioner’s habeas claims.” See Stone v. Moore, 644 F.3d
342, 348 (6th Cir. 2011). Therefore, because Petitioner failed to file a timely appeal and his
motion to file a delayed appeal was denied for failure to make the required showing of good
cause, Petitioner has procedurally defaulted his claims.
Petitioner may still secure this Court’s review of the merits of the claims that have not
been waived by the entry of his no contest plea if he demonstrates cause for his failure to follow
the state procedural rule, as well as actual prejudice from the constitutional violations that he
alleges. “[P]etitioner has the burden of showing cause and prejudice to overcome a 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)). However, in order to establish cause, a
petitioner “must present a substantial reason that is external to himself and cannot be fairly
attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007). Petitioner has failed
to do so here.
As cause for this procedural default, Petitioner asserts that neither the trial court nor his
attorney informed him of his limited appellate rights, and that he was denied the right to the
effective assistance of counsel because his attorney failed to advise him of his limited appellate
rights.2 Petitioner indicated in his March 10, 2015, motion for a delayed appeal that he had been
placed at the Correctional Reception Center, where he remained in “lockdown 22 hours per day”
until December 24, 2014. During that time, Petitioner asserts, the public defender told Petitioner
that he could not file an appeal. (Doc. 7-1, PageID# 206). Thereafter, on December 24, 2014,
when Petitioner was moved to the Chillicothe Correctional Institution, he learned that he could
file an appeal, and he asked his family to help him find an appellate attorney. Id. (PageID# 203).
“Additional delay between the end of January and March 10, 2015 was due to the
communications and scheduling problems between Feely’s family and Appellant counsel.”
Motion for Leave of Court to File Delayed Criminal Appeal and Supporting Affidavits (Doc. 7-1,
PageID# 203). Attorney Donald Gallick indicated that Petitioner’s family had contacted him at
the end of January 2015 to discuss retaining Gallick for the purpose of filing a delayed appeal.
(PageID# 205). On February 19, 2015, Gallick met with Petitioner in Chillicothe and directed
Petitioner to provide an affidavit explaining the reasons for the untimely appeal. On March 2,
Petitioner also refers to Board v. Bradshaw, 805 F.3d 769, 776 (6th Cir. 2015), which held that a motion for a
delayed appeal tolls the running of the statute of limitations under 28 U.S.C. § 2244(d)(2). This holding does not
apply to the circumstances at issue here.
2015, Gallick received the requested affidavit from the Petitioner.
Id. On March 10, 2015,
Gallick filed the motion for a delayed appeal. Petitioner further indicated that, when he pleaded
guilty, he was not advised that consecutive sentences would be imposed.
However, Petitioner never presented to the state courts his claim that he was denied the
effective assistance of counsel based on his attorney’s failure to advise him of his right to file an
Therefore, that claim cannot constitute cause for his procedural default in these
proceedings. See Edward, 529 U.S. at 450-51 (the constitutionally ineffective assistance of
counsel may constitute cause for a procedural default, so long as such claim has been presented
to the state courts and is not, itself, procedurally defaulted) (citing Murray, 477 U.S. 488-89).
“[A] petitioner cannot use the ineffective assistance of appellate counsel as cause to excuse a
procedurally defaulted claim when he has failed to present the claim of the ineffectiveness of
appellate counsel as an independent claim or has otherwise procedurally defaulted that claim.”
Tomilinson v. Bradshaw, No. 5:13-cv-1808, 2015 WL 106060, at *17 (N.D. Ohio Jan. 7, 2015)
(citations omitted). Under these circumstances, Petitioner has failed to establish cause for his
The United States Supreme Court has held that a claim of actual innocence may be raised
“to avoid a procedural bar to the consideration of the merits of [the petitioner's] constitutional
claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a showing of cause for the
procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible
showing of actual innocence was sufficient to authorize a federal court to reach the merits of an
otherwise procedurally-barred habeas petition. Id. at 317. However, the actual innocence claim
is “‘not itself a constitutional claim, but instead a gateway through which a habeas petitioner
must pass to have his otherwise barred constitutional claim considered on the merits.’” Id. at 315
(quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual innocence exception allows a petitioner to pursue his constitutional claims if it
is “more likely than not” that new evidence – that is, evidence not previously presented at trial –
would allow no reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones,
395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the Sixth Circuit explained the exception
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.” Schlup, 513 U.S. at
316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is
whether “new facts raise[ ] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial.” Id. at 317,
513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual
innocence, “a petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828
(1998). “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidence –
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court counseled however, that the actual
innocence exception should “remain rare” and “only be applied in
the ‘extraordinary case.’ ” Id. at 321, 513 U.S. 298, 115 S.Ct. 851,
130 L.Ed.2d 808.
Souter, 395 F.3d at 589–90 (footnote omitted). Petitioner does not meet these standards here.
After an independent review of the record, the Court does not deem this to be so extraordinary a
case as to relieve petitioner of his procedural default.
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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 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/ Norah McCann King
Norah McCann King
United States Magistrate Judge
August 23, 2017
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