Boddie v. State of Ohio

Filing 17

ORDER & REPORT AND RECOMMENDATION re 8 MOTION to Dismiss or in the alternative, Respondent's Answer/Return of Writ filed by State of Ohio in that it is RECOMMENDED be GRANTED and that this action be DISMISSED; Petitioner's 9 Motion for Appointment of Counsel and Petitioner's Motion for the Release of Exculpatory Evidence and for an Evidentiary Hearing are DENIED; Respondent's 15 Motion to Strike Petitioner's Notice of Supplement to the Record is GRANTED. Objections to R&R due by 5/30/2017. Signed by Magistrate Judge Norah McCann King on 5/15/17. (sem)(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
HOWARD BODDIE, JR.,
Petitioner,
v.

Case No. 2:16-cv-820
JUDGE MICHAEL H. WATSON
Magistrate Judge King

STATE OF OHIO,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a former state prisoner who is currently under the supervision of the Ohio
Adult Parole Authority, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. §
2254.1 This matter is before the Court on the Petition (Doc. 1); Respondent’s Motion to Dismiss
or, in the Alternative, Answer/Return of Writ (Doc. 8); Petitioner’s Contra Motion to
Respondent’s Motion to Dismiss, Motion for Appointment of Counsel, Motion for Release of
Exculpatory Evidence (Doc. 9); Respondent’s Reply to Petitioner’s Opposition to Respondent’s
Motion to Dismiss, and Respondent’s Opposition to Petitioner’s Motions for Appointment of
Counsel and Release of Exculpatory Evidence (Doc. 10); Respondent’s Notice of Supplement to
the Record (Doc. 11); Petitioner’s Opposition to Respondent’s Motion to Dismiss and Motion for
Evidentiary Hearing (Doc. 13); Petitioner’s Notice of Supplement to the Record (Doc. 14);
Respondent’s Motion to Strike Petitioner’s Notice of Supplement to the Record (Doc. 15);
Petitioner’s Motion in Opposition to Strike Karen T. Monroe’s Health Care Power of Attorney
1

 The Ohio Adult Parole Authority, the agency having custody of Petitioner for purposes of this action, is the proper
Respondent. See Rule 2 of the Rules Governing Section 2254 Cases in the United States District Court, Adv. Comm.
Notes (“The named respondents shall be the particular probation or parole officer responsible for supervising the
application, and the official in charge of the parole or probation agency, or the state correctional agency, as
appropriate.” ) .

Filed in Petitioner’s Notice of Supplement to the Record (Doc. 16), and the exhibits of the
parties.
For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent’s
motion to dismiss (Doc. 8) be GRANTED and that this action be DISMISSED.
Petitioner’s motions for the appointment of counsel, for the release of exculpatory
evidence, and for an evidentiary hearing (Docs. 9, 13) are DENIED.
Respondent’s Motion to Strike Petitioner’s Notice of Supplement to the Record (Doc. 15)
is GRANTED.
Facts and Procedural History
The procedural history has been previously outlined by this Court, see Boddie v. Warden,
Chillicothe Correctional Institution, No. 2:14-cv-226, Report and Recommendation (Doc. 27),
but is repeated herein as follows:
On May 6, 2008, a Franklin County Grand Jury indicted appellant on one
count of domestic violence in violation of R.C. 2919.25 and one count of
abduction in violation of R.C. 2905.02, both felony offenses. Appellant
entered a not guilty plea to the charges. Eventually, a jury found appellant
guilty of both charges on May 27, 2010. The trial court sentenced appellant
accordingly.
Appellant appeals and assigns the following errors:
I.

APPELLANT'S RIGHT TO A SPEEDY TRIAL WAS
VIOLATED UNDER OHIO LAW AS WELL AS THE OHIO
AND FEDERAL CONSTITUTIONS WHEN NUMEROUS
DELAYS OCCURRED PRIOR TO HIS TRIAL.

II.

APPELLANT
WAS
DENIED
THE
EFFECTIVE
ASSISTANCE OF COUNSEL CONTRA HIS RIGHTS
UNDER THE OHIO AND FEDEAL CONSTITUTIONS.

State v. Boddie, No. 10AP-687, 2011 WL 2586717, at *1 (Ohio App. 10th Dist. June 30, 2011).
On June 30, 2011, the appellate court affirmed the judgment of the trial court. Id. Petitioner did

2

not file a timely appeal. On November 10, 2011, he filed a motion requesting the transcripts of
voir dire proceedings, and of competency and bond hearings. (Doc. 8-1, PageID# 406). On
January 4, 2012, the trial court denied Petitioner’s requests. Entry (PageID# 412). On April 25,
2016, Petitioner filed a Motion for Delayed Appeal. (Doc. 8-1, PageID# 575). On June 15,
2016, the Ohio Supreme Court denied the motion and dismissed the appeal. State v. Boddie, 146
Ohio St.3d 1414 (Ohio 2016); (PageID# 589).
On June 20, 2012, petitioner filed a pro se motion to reopen his appeal pursuant to Rule
26(B) of the Ohio Rules of Appellate Procedure, again asserting the denial of a speedy trial and
the ineffective assistance of trial counsel. (Doc. 8-1, PageID# 189). On September 25, 2012, the
Ohio Tenth District Court of Appeals denied petitioner’s motion as untimely and without merit.
(Doc. 8-1, PageID# 297). Petitioner filed a timely appeal from that decision. (Doc. 8-1,
PageID# 305). He also filed, on December 12, 2012, a motion to take judicial notice and request
for a copy of the transcripts of voir dire proceedings. (PageID# 327). On February 6, 2013, the
Ohio Supreme Court dismissed the appeal and denied as moot Petitioner’s motion to take judicial
notice and to provide a complete copy of voir dire transcripts. (PageID# 337); State v. Boddie,
134 Ohio St.3d 1451 (Ohio 2013).
On July 26, 2011, appellant filed a “petition to vacate or set aside judgment of
conviction or sentence.” Therein, appellant again claimed that he had been denied
the effective assistance of trial counsel. He also alleged that law enforcement
threatened to pursue criminal charges against the victim if she refused to testify
against him, and in turn, she committed perjury. Appellant asserted that the
victim's health history and prior criminal convictions affected her credibility.
Appellant attached several unsworn documents to his petition. Among these
documents were letters that appellant claimed were written by the victim,
including one in which the victim stated that appellant “did not abduct” her. (R.
213.)
On June 1, 2012, appellant filed a “motion to vacate sentence,” which again raised
an ineffective assistance of trial counsel claim and also alleged he was denied his
right to a speedy trial.
3

On September 8, 2011, without holding a hearing, the trial court denied the July
26, 2011 petition because the issues raised by appellant were barred by the
doctrine of res judicata. The trial court also denied appellant's June 1, 2012
motion to vacate his sentence on August 15, 2012 without holding a hearing. The
court reasoned that res judicata precluded appellant from raising the issue of a
speedy trial violation, and he failed to support the substantive requirements for his
ineffective assistance of counsel claim. Appellant appealed from the judgments of
the trial court, and this court consolidated the appeals.
***
Appellant assigns three errors for our consideration:
[I.] Appellant contends that the trial court committed plain and
prejudicial error, and denied him due process and equal protection of law
when the trial court denied appellant's motion for post-conviction relief
without (1) holding a formal hearing/evidentiary hearing on his
misconduct claims, and (2) for denying the petition without providing
findings of facts and conclusions of law in violation of appellant's U.S.
constitutional rights to meaningful access-to-the court founded under the
1st, and 14th amendments.
[II.] Appellant contends that he was denied due process and meaningful
access-to-the-courts when the trial court denied appellant's postconviction motion on res -judicata grounds in violation of appellant's 1st
and 14th amendment rights under the United States Constitution.
[III.] Appellant contends that the trial court violated his constitutional
rights to meaningful access-to-the courts, due process, and equal
protection of law under the 1st and 14th amendments to the U.S.
Constitutions when the court deliberately ignored evidence presented
that appellant suffered ineffective assistance of counsel at trial.
State v. Boddie, Nos. 12AP-811, 12AP-812, 2013 WL 4973012, at *1-3 (Ohio App. 10th Dist.
Sept. 12, 2013). On September 12, 2013, the appellate court affirmed the judgment of the trial
court. Id. Petitioner apparently did not file an appeal from that decision to the Ohio Supreme
Court.

4

However, on October 15, 2012, Petitioner filed a petition for a writ of habeas corpus with
the Supreme Court of Ohio. (Doc. 8-1, PageID# 530). On November 28, 2012, the Ohio
Supreme Court sua sponte dismissed that action. (PageID# 572).
On March 3, 2014, Petitioner filed his first federal habeas corpus petition pursuant to 28
U.S.C. § 2254. Boddie v. Warden, Chillicothe Correctional Institution, No. 2:14-cv-226 (S.D.
Ohio). On September 17, 2015, this Court dismissed that action without prejudice as
unexhausted. Id., Judgment (Doc. 32). Petitioner filed a notice of appeal from that decision, id.,
Notice of Appeal (Doc. 24), but this Court and the United States Court of Appeals for the Sixth
Circuit declined to issue a certificate of appealability. Id., Order (Doc. 41); Boddie v. Jenkins,
No. 15-4153 (6th Cir. Mar. 25, 2016). On July 8, 2016, Petitioner filed a Notice of Exhaustion of
Claim Six and Motion for a Certificate of Appealability and Motion for Appointment of Counsel.
See id., Judgment (Doc. 38). The Court denied Petitioner’s motion and directed him to file a
new petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Id. (Doc. 41).
On August 25, 2016, Petitioner filed this habeas corpus petition. He alleges that the trial
court improperly denied his petition for post conviction relief without conducting an evidentiary
hearing (claim one); that the trial court abused its discretion and denied him access to the courts
and due process by denying his post conviction claims as barred under Ohio’s doctrine of res
judicata (claim two); that he was denied due process and equal protection by the Ohio Supreme
Court’s failure to provide him with a transcript of voir dire proceedings, and that the prosecutor
and defense counsel during voir dire tainted the jury and caused juror bias (claim three); that he
was denied a fair trial by the prosecutor’s use of false and perjured testimony and that he was
denied his right to a speedy trial (claim four); that he was denied access to the courts, equal
protection of the law, and due process due to the Ohio Supreme Court’s refusal to permit the

5

filing of an untimely appeal in post conviction proceedings (claim five); that he was denied the
effective assistance of trial counsel based on his attorney’s failure to conduct pre-trial
consultation and investigation (claim six); that he was denied the right to a fair trial, due process,
and equal protection of the law, and the right of confrontation due to the fraudulent concealment
of exculpatory and impeachment evidence (claim seven); that the evidence is constitutionally
insufficient to sustain his convictions on domestic violence and abduction (claims eight and
nine); and that he was convicted in violation of the Fourth Amendment (claim ten). Respondent
contends that the Court should dismiss this action as barred by the one-year statute of limitations
under 28 U.S.C. § 2244(d) and, alternatively, that Petitioner’s claims are procedurally defaulted
or otherwise fail to provide a basis for federal habeas corpus relief.
Motion to Strike Petitioner’s Notice of Supplement to the Record
On November 9, 2016, Petitioner filed a Notice of Supplement to the Record, to which he
attached what appears to be a document indicating that, on November 3, 2016, Karen Monroe,
the alleged victim, gave him the power of attorney to make health care decisions on her behalf.
(Doc. 14, PageID# 989-99). Petitioner apparently seeks to expand the record to make this
document a part of the record in this case. Respondent opposes any such expansion of the
record, arguing that the document is not relevant to these proceedings and that, in any event, the
Court must limit its review to the record that the state courts considered when it adjudicated
Petitioner’s claims. Respondent’s Motion to Strike Petitioner’s Notice of Supplement to the
Record (Doc. 15)(citing Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011)).
Petitioner insists that evidence indicating that Monroe granted him a power of attorney
over her health care decisions in November 2016 supports his allegation that his prosecution was
based on improper motives and denied him due process, equal protection and the effective

6

assistance of counsel. In support of this argument, Petitioner refers to portions of the trial
transcript indicating that Monroe had granted Petitioner the power of attorney to make end of life
health care decisions on her behalf, but that the trial court prohibited Petitioner from testifying
regarding Monroe’s alleged psychiatric hospitalizations, HIV condition, or other health issues.
See, e.g., Transcript (Doc. 8-3, PageID# 803-08). Petitioner also refers to a letter written by him
to Monroe on April 23, 2008, which was admitted as evidence against him at trial. See id. (Doc.
8-3, PageID# 663). According to Petitioner, the State denied him access to that document until
May 2011. See Petitioner’s Motion in Opposition to Strike Karen T. Monroe’s Health Care
Power of Attorney Filed in Petitioner’s Notice of Supplement to the Record (Doc. 16).
This Court is not persuaded that the November 2016 document attached to Petitioner’s
Notice of Supplement to the Record is relevant to the claims asserted in this action. Whether
Monroe granted Petitioner a health care power of attorney in November 2016 – years after the
incident at issue and the trial in this case – simply has no relevance to this Court’s determination
of the timeliness of the action or whether Petitioner’s claims are procedurally defaulted or fail to
state a claim for federal habeas corpus relief. Further, Respondent correctly notes that this Court
is constrained by the Supreme Court’s decision in Pinholster to limit its review to the record that
was before the state court.
Therefore, Respondent’s Motion to Strike Petitioner’s Notice of Supplement to the Record
(Doc. 15) is GRANTED.
Motion for the Appointment of Counsel and an Evidentiary Hearing
Petitioner requests the assistance of Court appointed counsel in these proceedings and
seeks an evidentiary hearing on his claims. (Docs. 9, 13).

7

Habeas corpus proceedings are considered to be civil in nature, and the Sixth Amendment
does not guarantee the right to counsel in such proceedings. McCleskey v. Zant, 499 U.S. 467,
495 (1991)(no constitutional right to counsel in federal habeas); Pennsylvania v. Finley, 481 U.S.
551, 555 (1987)(no right to counsel beyond first appeal of right); Hilton v. Braunskill, 481 U.S.
770, 776 (1987)(“habeas corpus proceedings are civil in nature”)). See also Hoggard v. Purkett,
29 F.3d 469, 471 (8th Cir. 1994)(citing Boyd v. Groose, 4 F.2d 669, 671 (8th Cir. 1993)). “Never
has it been held that there is a constitutional right to counsel in a habeas action.” Id. at 471
(citing Blair v. Armontrout, 916 F.2d 1310, 1332 (8th Cir. 1990); Johnson v. Avery, 393 U.S. 483,
488 (1969)). Rather, “[t]he decision to appoint counsel for a federal habeas petitioner is within
the discretion of the court and is required only where the interests of justice or due process so
require.” Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986)(citations omitted); 18 U.S.C. §
3006(a)(2)(B). Specifically, the appointment of counsel is required where an evidentiary hearing
is necessary to resolve a petitioner’s claims. See Rule 8 of the Rules Governing Section 2254
Cases in the United States District Courts. In determining whether to exercise its discretion in
favor of appointing counsel on a petitioner’s behalf, a court should consider “the legal and
factual complexity of the case, the petitioner’s ability to investigate and present his claims, and
any other relevant factors.” Mathhews v. Jones, No. 5:13-cv-1850, 2015 WL 545752, at *3
(N.D. Ohio Feb. 10, 2015)(citations omitted).
Petitioner contends that counsel should be appointed in these proceedgings because he
has been denied the effective assistance of counsel in state court proceedings. With proper
representation and investigation by counsel, Petitioner argues, he can establish that he is actually
innocent of the charges against him and that he has presented meritorious claims for relief.
However, arguments such as these are not atypical in habeas corpus proceedings and do not

8

warrant the appointment of counsel on Petitioner’s behalf. Moreover, the record does not
indicate that an evidentiary hearing will be required to resolve any of the issues presented in this
action. As discussed below, Petitioner’s claims are procedurally defaulted or otherwise plainly
fail to provide a basis for relief. Moreover, the record does not indicate that this case is so
unduly complex that the interests of justice or notions of due process require the appointment of
counsel on Petitioner’s behalf. To the contrary, the record indicates that Petitioner has capably
initiated numerous state court actions on his own behalf and has more than adequately presented
his arguments in these proceedings.
Petitioner’s request for the appointment of counsel and for an evidentiary hearing (Docs.
9, 13), are DENIED.
Motion for Release of Exculpatory Evidence
Petitioner claims that Respondent intentionally concealed exculpatory evidence; he
requests that Respondent be ordered to provide a copy of the transcripts of voir dire proceedings
and the 9-1-1 tapes made in the early morning hours of April 16, 2008, i.e., the date on which the
offenses are alleged to have occurred. (Doc. 9). Petitioner also seeks the Court’s determination
of alleged speedy trial violations during the period April 16, 2008 to May 24, 2010. Petitioner’s
contra Motion to Respondent’s Motion to Dismiss, Motion for Appointment of Counsel, Motion
for Release of Exculpatory Evidence (Doc. 9, PageID# 949).
Petitioner seeks production of a copy of the voir dire transcripts as relevant to his claim
that he was denied the effective assistance of counsel. He alleges that, on May 25, 2010, during
the course of voir dire, his attorney engaged in racially charged dialogue with several jurors,
inappropriately drawing an inflammatory and “volatile comparison” between this case and the
murder trial of O.J. Simpson, and failed to object to the prosecutor’s reference to a movie called

9

“The Burning Bed.” Id. (Doc. 9, PageID# 950). Petitioner also raises a claim that his attorney
and the prosecutor conspired to violate Batson v. Kentucky, 476 U.S. 79 (1986), by removing an
African American woman from the jury pool. Id. (PageID# 950-51). Petitioner contends, too,
that a copy of the voir dire transcripts will help him to establish that he was denied due process
and was the victim of a manifest miscarriage of justice. Id. (PageID# 951). According to
Petitioner, the State has unconstitutionally refused, to date, to provide him with a free copy of the
transcripts of voir dire proceedings, thereby denying him equal protection, due process, and
meaningful access to the courts. Id. Petitioner specifically refers to habeas corpus claim eight,
in which he alleges that the evidence was constitutionally insufficient to sustain his conviction on
the domestic violence charge. He also alleges juror bias: “[A] juror name[d] Mr. Rink spoke to
Ms. Monroe and told her that all jurors were out to help her. After this fact [M]r. Rink
intentionally disrupted the trial proceedings and stated that I had threaten[ed] jurors, causing all
jurors to be s[e]quester[ed].” Petition (Doc. 1, PageID# 16). As for the requested 9-1-1 tape,
Petitioner maintains that the tape will establish his actual innocence. Petitioner acknowledges
that his attorney had a copy of the 9-1-1 tape, but he complains that the State has refused him
access to the tape. (Doc. 9, PageID# 953-54); see also Petitioner’s Opposition to Respondent’s
Motion to Dismiss and Motion for Evidentiary Hearing (Doc. 13, PageID# 983). Petitioner
further argues that a transcript of the recording will show that police lied, forced or threatened
the alleged victim to testify against him, and that they violated the Fourth Amendment in
entering his home.
Respondent opposes Petitioner’s requests, taking the position that neither the voir dire
proceedings nor the 9-1-1 recordings were ever transcribed and are therefore not in the
possession of the Respondent.

See Respondent’s Reply to Petitioner’s Opposition to

10

Respondent’s Motion to dismiss, and Respondent’s Opposition to Petitioner’s Motions for
appointment of Counsel and Release of Exculpatory Evidence (Doc. 10). The record establishes
that voir dire proceedings were not transcribed.

See Trial Transcript (Doc. 8-3, PageID#

672)(indicating that “the impaneling of the jury was held on the record. However, it was not
transcribed.”) Additionally, Respondent argues that the expansion of the record requested by
Petitioner will violate Cullen v. Pinholster, 563 U.S. at 170, and is not appropriate under Rule 6
of the Rules Governing Section 2254 Cases in the United States District Courts.
The discovery processes authorized by the Federal Rules of Civil Procedure do not
automatically apply to habeas corpus proceedings. “A judge may, for good cause, authorize a
party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent
of discovery.” Rule 6 of the Rules Governing Section 2254 Cases in the United States District
Courts.

Under this “good cause” standard, a district court should grant leave to conduct

discovery in habeas corpus proceedings only if “‘specific allegations before the court show
reason to believe that the petitioner may, if the facts are more fully developed, be able to
demonstrate that he is. . . entitled to relief. . . .’” Bracy v. Gramley, 520 U.S. 899, 908-09
(1997)(quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). See also Standford v. Parker, 266
F.3d 442, 460 (6th Cir. 2001). Moreover, Rule 7 of the Rules Governing Section 2254 Cases in
the United States District Courts also permits federal habeas courts to direct the parties to
supplement the state court record with materials relevant to the Court's resolution of the petition:
(a) In General. If the petition is not dismissed, the judge may direct
the parties to expand the record by submitting additional materials
relating to the petition. The judge may require that these materials
be authenticated.
(b) Types of Materials. The materials that may be required include
letters predating the filing of the petition, documents, exhibits, and
answers under oath to written interrogatories propounded by the
11

judge. Affidavits may also be submitted and considered as part of
the record.
(c) Review by the Opposing Party. The judge must give the party
against whom the additional materials are offered an opportunity to
admit or deny their correctness.
However, the decision whether to order an expansion of the record under Rule 7 falls within the
sound discretion of the district court. Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988). Such
expansion must be limited by the relevance of the proffered materials to the constitutional claims
presented.
This Court concludes that Petitioner has failed to establish good cause for his requests for
production of a copy of the transcripts of voir dire proceedings or the 9-1-1 calls. For the
reasons discussed below, this Court concludes that all of Petitioner’s claims are procedurally
defaulted, time-barred, or otherwise fail to provide a basis for federal habeas corpus relief. For
example, Petitioner did not previously raise a claim under Batson, and that issue is therefore not
properly before this Court; Petitioner’s claim of the denial of his right to a speedy trial is timebarred; the Fourth Amendment does not offer a basis for federal habeas corpus relief, see Stone
v. Powell, 428 U.S. 465, 482 (1976); Riley v. Gray, 674 F.2d 522, 526 (6th Cir.
1982)(opportunity for full and fair litigation of a Fourth Amendment claim exists where the state
procedural mechanism presents an opportunity to raise the claim, and presentation of the claim
was not frustrated by a failure of that mechanism); and Petitioner did not request a copy of the
transcript of voir dire proceedings until November 10, 2011, i.e., after the state appellate court’s
June 30, 2011, dismissal of his direct appeal and after the trial court’s denial of his petition for
post conviction relief. See Motion to Prepare Transcripts of Proceedings at State Expense (Doc.
8-1, PageID# 406). Petitioner’s direct appeal, in which he was represented by counsel, had not
implicated the voir dire; the trial court therefore denied Petitioner’s request for the transcripts of
12

voir dire proceedings, reasoning that Petitioner had no right to a second appeal or to
supplemental transcripts. Entry (Doc. 8-1, PageID# 412). Petitioner did not file an appeal from
that decision. In December 2012, and after the filing of his appeal in Rule 26(B) proceedings to
the Ohio Supreme Court, Petitioner again requested a copy of the transcript of voir dire
proceedings. Id. (PageID# 327). Notably, however, Petitioner did not raise any issue relating to
voir dire proceedings in his direct appeal or in his untimely Rule 26(B) application.
Additionally, Petitioner had access to the 9-1-1 tape through his defense counsel. Although
neither of the parties sought to introduce the recording of the 9-1-1 calls, evidence regarding the
nature and content of the 9-1-1 calls was submitted at trial, and there is simply no reason to
believe that further expansion of the record to include the transcript of the 9-1-1 calls will assist
Petitioner in establishing his claims.
Karen Monroe, the victim in this case, testified that, in the early morning hours of April
16, 2008, she called 9-1-1 three times. According to the victim, Petitioner took the phone out of
her hand the first time, informed police that “everything was okay and hung up.”

Trial

Transcript (Doc. 8-3, PageID# 677).
And I think I called them back the second time. But on the third
time, the phone kind of laid sideways on the bed. And so I hit 911,
and the phone was open, and they heard me screaming.
Id. Thus, although the victim never had an actual conversation with the 9-1-1 dispatcher, she
testified that she called 9-1-1 for help. Id. (PageID# 678). The victim also testified that
Petitioner would not let her leave, and covered her face with a pillow and tried to suffocate her
because she was screaming. According to the victim, she screamed so that the 9-1-1 dispatcher
would hear her voice and send help. Id. (PageID# 678-79). When the police approached the
door, Petitioner turned off all the lights and would not permit her to answer. The police

13

eventually opened the door with a battering ram. Petitioner put his arm around the victim’s neck
on the couch and told her not to move, that everything would be okay, and that they would get
some crack later. Id. (PageID# 679-80). The victim asked the police to kick the door in, because
she could not open it. Id. (PageID# 682-83). When the police entered the residence, the victim
was crying and hysterical; she told the police that Petitioner was going to kill her. “She was
completely hysterical, saying he was going to kill her, and he kept her against her will.” Id.
(PageID# 690). Officers Arauco and Ramsey broke the door down after the victim had asked
them to do so. Id. (PageID# 687). Officer Aimee Ramsey indicated in the “U.10” police report
that there had been two hang-up calls made to 9-1-1 from the home, and that a female could be
heard yelling in the background. Id. (PageID# 688-89). The “U.10” indicated that a man had
made the first 9-1-1 call. Id. (PageID# 773-74).
Petitioner testified that it was he who had called 9-1-1, but that the victim had snatched
the plug of the telephone out of the wall. Id. (PageID# 811-12). When he thereafter took her car
keys in order to protect her and keep her from going out to purchase more crack cocaine, she
called 9-1-1. Id. (PageID# 816). According to Petitioner, Ms. Monroe told police to kick the
door in because they could not open it. Id. (PageID# 819).
Petitioner acknowledges that his attorney was provided a copy of the 9-1-1 tapes.
(Doc. 9, PageID# 953). Therefore, the prosecutor did not unlawfully fail to disclose this evidence
to the defense. Petitioner’s allegations that further discovery will assist him in establishing that
police lied or that they forced the victim to fabricate the charges against him and that the
prosecutor withheld material exculpatory evidence are entirely speculative, contradicted by the
record, and without support. Further, Petitioner’s allegations and claims related to the transcripts
of voir dire proceedings have been waived and his claim that he was unconstitutionally denied a

14

transcript of voir dire proceedings plainly lacks merit. Petitioner’s discovery requests will not
assist him in establishing that he is entitled to relief. Rather, those requests amount to nothing
more than a fishing expedition.
Therefore, Petitioner's motion for release of exculpatory evidence (Doc. 9) is DENIED.
Statute of Limitations
Respondent contends that the action is time-barred. The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), which became effective on April 24, 1996, imposes a
one-year statute of limitations on the filing of habeas corpus petitions:
(d) (1) A 1–year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State
postconviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.

15

28 U.S.C. § 2244(d). This Court has previously determined that Petitioner’s July 26, 2011 post
conviction petition tolled the running of the statute of limitations, and that the one-year statute of
limitations therefore began to run on October 8, 2011.

Boddie v. Warden, Chillicothe

Correctional Institution, Case No. 2:14-cv-226, Order and Report and Recommendation (Doc.
11, PageID# 660), adopted and affirmed by Opinion and Order (Doc. 18).
The statute of limitations ran for 237 days until, on June 1, 2012,
petitioner filed another petition for post-conviction relief. . . . [T]he
June 1, 2012 petition also served to toll the statute of limitations
under 2244(d)(2). . . . Thus, the statute of limitations was tolled . .
. from June 1, 2012 until October 27, 2013 (when the period for
seeking review by the Ohio Supreme Court expired).
The statute of limitations therefore resumed on October 28, 2013[.]
Id. (PageID# 660). Therefore, the statute of limitations ran for a period of 237 days, and began
to run again on October 27, 2013. It expired 128 days later, on March 5, 2014.
On February 25, 2014, Petitioner filed his first § 2254 petition. However, on September
17, 2015, the date on which the judgment was entered dismissing that action without prejudice as
unexhausted, the statute of limitations had long since expired. Moreover, the time during which
Petitioner’s first federal habeas action was pending did not toll the running of the statute of
limitations. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Plainly, therefore, Petitioner
could not have filed this second § 2254 petition (filed on August 25, 2016) prior to the expiration
of the one-year statute of limitations under § 2244(d).
However, a petitioner is entitled to a “mandatory equitable tolling” of the statute of
limitations, pursuant to Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002), if he returns to the state
courts to address his unexhausted claims within thirty days of the District Court’s dismissal of
the case, and then returns to federal court within thirty days after exhausting those claims. See

16

Bozsik v. Bagley, 534 Fed.Appx. 427, 430 (6th Cir. 2013)(citing Griffin v. Rogers, 399 F.3d 626,
635 (6th Cir. 2005)).
Palmer and Griffin established a form of “mandatory equitable
tolling,” which is applicable in situations in which the dismissal of
a mixed petition could jeopardize the timeliness of a subsequent
petition. Under Palmer and Griffin, if the district court fails to
grant a stay, a petitioner is entitled to mandatory equitable tolling
of the AEDPA period if he/she files in state court within thirty
days of the federal court dismissal and returns to federal court no
later than thirty days following state court exhaustion.
Huey v. Smith, 199 Fed.Appx. 498, 500, unpublished, 2006 WL 2860605 (6th Cir. Oct. 5, 2006).
“If a petitioner fails to qualify for mandatory equitable tolling, he may still qualify for traditional
equitable tolling.” McMurray v. Scutt, 136 Fed.Appx. 815, 817, unpublished, 2005 WL 1386486
(6th Cir. June 7, 2005)(citing Griffin, 399 F.3d at 635).
Here, the Court dismissed Petitioner’s first § 2254 petition without prejudice as
unexhausted on September 17, 2015. Boddie v. Warden, Chillicothe Correctional Institution,
Case No. 2:14-cv-226 (Doc. 32). Petitioner thereafter filed a Notice of Appeal and Motion for
Leave to Appeal in forma pauperis. Id. (Docs. 33, 34). This Court issued an order declining to
issue a certificate of appealability on October 19, 2015,. Id. (Doc. 35). On March 28, 2016, the
Sixth Circuit denied Petitioner’s application for a certificate of appealability and request for the
appointment of counsel. Id. (Doc. 36). Within thirty days thereafter, on April 25, 2016,
Petitioner filed a Motion for Delayed Appeal in the Ohio Supreme Court. (Doc. 8-1, PageID#
575). On June 15, 2016, the Ohio Supreme Court denied the motion and dismissed the appeal.
State v. Boddie, 146 Ohio St.3d 1414 (2016); (PageID# 589). Within thirty days thereafter, on
July 8, 2016, Petitioner filed a Motion and Memorandum in Support for Notice of Exhaustion of
Claim Six and Motion for a Certificate of Appealability and Motion for the Appointment of

17

Counsel, notifying this Court that he had exhausted his state court remedies. Id. (Doc. 38).2 On
July 21, 2016, this Court advised Petitioner that he must file a new habeas corpus petition “if he
believes that he has meritorious claims to present to the Court regarding his conviction and that
he has now properly exhausted these claims[.]” Id., Order (Doc. 41). On August 25, 2016,
Petitioner filed this second habeas corpus petition.
Petitioner maintains that he has acted diligently in pursuing relief. He alleges that prison
officials have denied him access to the courts by delaying his mail and by confiscating his legal
materials when he was released from prison. Petitioner’s Opposition to Respondent’s Motion to
Dismiss and Motion for Evidentiary Hearing (Doc. 13, PageID# 79-80).
Respondent contends that the mandatory equitable tolling rule of Palmer does not apply
to these facts, because Petitioner filed an appeal from this Court’s dismissal of his first § 2254
petition as unexhausted and did not immediately proceed to exhaust his claim in the Ohio courts.
Return of Writ (Doc. 8, PageID# 74). Respondent’s contention in this regard is unpersuasive.
Respondent does not refer to, and this Court has been unable to locate, any cases supporting that
contention. Furthermore, to adopt that contention would be to unfairly penalize a petitioner for
pursuing his right to appeal from the judgment of this Court. Under the particular circumstances
presented in this case, the Court concludes that Petitioner exercised reasonable diligence in
pursing his rights upon the dismissal of his first unexhausted § 2254 petition. Moreover,
Petitioner attempted to return to this Court (by filing his Motion and Memorandum in Support
for Notice of Exhaustion of Claim Six and Motion for a Certificate of Appealability and Motion
for the Appointment of Counsel) within thirty days of the Ohio Supreme Court’s dismissal of his

2

 Petitioner represented that, on May 19, 2016, he contacted the Office of the Ohio Public Defender, which advised
him on July 5, 2016, that Petitioner should file this motion in the earlier habeas action. See Boddie v. Warden,
Chillicothe Correctional Institution, Case No. 2:14-cv-226, Affidavit of Howard Boddie, Jr. (Doc. 40, PageID#
1646-47).  

18

motion for a delayed appeal. See, e.g., Sueing v. Palmer, 503 Fed.Appx. 354, 357, unpublished,
2012 WL 5290284 (6th Cir. 2012)(District Court should have interpreted petitioner’s letter
referring to exhausted claims, as new habeas petition filed within the limitations period). Under
these circumstances, this Court is persuaded that Petitioner has met the “mandatory equitable
tolling” provisions of Griffin and Palmer. The dismissal of this action as time-barred is not
warranted.
That said, Respondent correctly notes that Petitioner did not raise any claim regarding the
denial of the right to a speedy trial in his first § 2254 action. See Boddie v. Warden, Chillicothe
Correctional Institution, No. 2:14-cv-226, Petition (Doc. 1). That particular claim is therefore
time-barred and will not now be considered by this Court.
Claims One, Two, and Five
In claim one, Petitioner alleges that the trial court unconstitutionally denied his petition
for post conviction relief without conducting an evidentiary hearing. In claim two, Petitioner
alleges that the trial court abused its discretion and unconstitutionally denied his post conviction
claims as barred under Ohio’s doctrine of res judicata. In claim five, Petitioner alleges that he
was prejudiced and denied access to the courts and was denied equal protection and due process
when the Ohio Supreme Court refused to permit him to file an untimely post conviction appeal
because it was one day late. These claims do not offer a basis for federal habeas corpus relief.
“[H]abeas corpus cannot be used to mount challenges to a state’s scheme of post-conviction
relief.” Leonard v. Warden, 846 F.3d 832, 854 (6th Cir. 2017)(citing Greer v. Mitchell, 264 F.3d
663, 681 (6th Cir. 2001)(citing Kirby v. Dutton, 794 F.2d 245, 246 (6th Cir. 1986); Cress v.
Palmer, 484 F.3d 844, 853 (6th Cir. 2007)). “[T]he Sixth Circuit has consistently held that errors
in post-conviction proceedings are outside the scope of federal habeas corpus review.” Farrow

19

v. Anderson, No. 1:08CV1429, 2009 WL 3004024, at *5 (N.D. Ohio Sept. 15, 2009) (citing
Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986); Roe v. Baker, 316 F.3d 557, 571 (6th Cir.
2002)). This is because “‘the essence of habeas corpus is an attack by a person in custody upon
the legality of that custody, and. . . the traditional function of the writ is to secure release from
illegal custody.’” Id. (quoting Kirby, 794 F.2d at 246 (quoting Preiser v. Rodriguez, 411 U.S.
475, 484 (1973))).
It is settled law in the Sixth Circuit that alleged errors in post-conviction
proceedings, such as the failure to grant evidentiary hearings, are outside the
scope of federal habeas review. Cornwell v. Bradshaw, 559 F.3d 398, 411 (6th
Cir. 2009) (petitioner's claim that the state court improperly denied him an
evidentiary hearing not cognizable in habeas corpus proceedings); Cress v.
Palmer, 484 F.3d 844, 853 (6th Cir. 2007); Kirby v. Dutton, 794 F.2d 245, 247
(6th Cir.1986) (“We decline to allow the scope of the writ to reach this second tier
of complaints about deficiencies in state post-conviction proceedings.”).
Johnson v. Lazaroff, No. 1:15CV43, 2016 WL 791609, at *15 (N.D. Ohio Jan. 6, 2016).
“Claims of denial of due process and equal protection in collateral proceedings are not
cognizable in federal habeas because they are not constitutionally mandated.” Knauff v. Hooks,
No. 1:15-cv-338, 2016 WL 2587965, at *14 (S.D. Ohio May 4, 2016)(citations omitted).
Claims one, two, and five fail to warrant relief.
Claim Three
In claim three, Petitioner alleges, inter alia, that he has been denied due process, equal
protection, and meaningful access to the courts because the State has refused to provide him with
a copy of the transcripts of voir dire proceedings free of cost. This claim plainly fails to provide
a basis for federal habeas corpus relief.
“[T]o satisfy the commands of the Equal Protection Clause, states may not condition the
exercise of basic trial and appeal rights on a defendant's ability to pay for such rights.” Riggins
v. Rees, 74 F.3d 732, 735 (6th Cir. 1996)(citing Griffin v. Illinois, 351 U.S. 12, 19 (1956)). In
20

cases involving an indigent defendant’s claim to a free transcript, a court must consider “the
value of the transcript to the defendant in connection with the appeal or trial for which it is
sought, and [] the availability of alternative devices that would fulfill the same functions as a
transcript.” Id. at 735 (citing Britt v. North Carolina, 404 U.S. 226, 227 (1971)). “While the
outer limits of that principle are not clear, there can be no doubt that the state must provide an
indigent defendant with a transcript of prior proceedings when that transcript is needed for an
effective defense or appeal.” Carrion v. Wilkinson, 405 F.Supp.2d 850, 851 (N.D. Ohio Sept.
12, 2005)(citations omitted). “The Rule [] is that an indigent petitioner must receive a free
transcript if the suit is not frivolous and the transcript is needed to decide the issue presented by
the petition.” Smith v. Wilson, 2008 WL 4279884, at *2 (N.D. Ohio Sept. 15, 2008)(citing Lane
v. Brown, 372 U.S. 477 (1963); United States v. MacCollum, 426 U.S. 317 (1976)).
Here, it appears that Petitioner first requested a transcript of voir dire proceedings in the
state trial court on November 10, 2011, i.e., after the dismissal of his direct appeal. (Doc. 8-1,
PageID# 406). Petitioner did not, apparently, request nor was he denied a free copy of the
transcript of voir dire proceedings in connection with his direct appeal. Moreover, Petitioner
did not appeal from the trial court’s decision denying his request for a free transcript. On
December 12, 2012, after the appellate court’s denial of his Rule 26(B) application, and after the
filing of his appeal from that decision,3 Petitioner filed a request for the voir dire transcript in the
Ohio Supreme Court. Id. (PageID# 327). Petitioner alleged, in the first instance, that he had
been denied the effective assistance of counsel because his attorney had filed the appeal without
reviewing the complete trial transcripts. Id. (PageID# 329). Notably, Petitioner did not raise this
issue in the state appellate court or in his Rule 26(B) application. In any event, the state
3

 The state appellate court’s Judgment Entry dismissing Petitioner’s Rule 26(B) application indicates that his
“motion for delayed reopening and motion to prepare transcripts of proceedings at state expense are denied.” (Doc.
8-1, PageID# 300).

21

appellate court denied Petitioner’s Rule 26(B) application as untimely, and the Ohio Supreme
Court affirmed that decision, denying Petitioner’s motion to provide a complete copy of voir dire
transcripts as moot. Id. (PageID# 297; 337).
Thus, the record does not indicate that Petitioner requested, or was denied, a copy of the
transcripts in connection with his direct appeal, or with any claims related to Rule 26(B)
proceedings or other collateral proceedings. Moreover, the state appellate court denied his Rule
26(B) application for failure to show good cause for the untimely filing, and denied his claims in
post conviction proceedings as barred under Ohio’s doctrine of res judicata. See State v. Boddie,
2013 WL 4973012. Therefore, the transcript of voir dire proceedings would not have assisted
Petitioner in obtaining relief. Under these circumstances, the record establishes that the State
did not deny Petitioner a free copy of any transcript in violation of Petitioner’s right to due
process. See Britt v. North Carolina, 404 U.S. at 227.
Claim Ten
In claim ten, Petitioner alleges that police illegally entered his home without a warrant or
probable cause. This claim likewise does not provide Petitioner the federal habeas relief that he
seeks. Generally, habeas corpus relief cannot be based on an alleged violation of the Fourth
Amendment, so long as the petitioner had an opportunity to present the claim to the state courts.
Stone v. Powell, 428 U.S. at 482; Riley v. Gray, 674 F.2d at, 526 (6th Cir. 1982)(opportunity for
full and fair litigation of a Fourth Amendment claim exists where the state procedural
mechanism presents an opportunity to raise the claim, and presentation of the claim was not
frustrated by a failure of that mechanism.)
One, the key purpose of federal habeas corpus is to free innocent prisoners. But
whether an investigation violated the Fourth Amendment has no bearing on
whether the defendant is guilty. [Stone v. Powell], at 490, 96 S.Ct. 3037. Two,
exclusion is a prudential deterrent prescribed by the courts, not a personal right
22

guaranteed by the Constitution. Any deterrence produced by an additional layer of
habeas review is small, but the cost of undoing final convictions is great. Id. at
493, 96 S.Ct. 3037.
Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013). Ohio permits a criminal defendant to file a
motion to suppress evidence prior to trial. See Ohio R. Crim. P. 12(C)(3). Further, there is no
basis in the record upon which to find that Petitioner was unable to present a claim under the
Fourth Amendment because of a failure of Ohio's procedural mechanism. To the contrary, after
a hearing, the trial court denied Petitioner’s motion to suppress evidence based on his allegation
of illegal entry into his home. See Trial Transcript (Doc. 8-3, PageID# 675-698). Therefore,
Petitioner's claim regarding the violation of the Fourth Amendment does not provide a basis for
federal habeas relief. See Davis v. Morgan, No. 2:15-cv-00613, 2016 WL 6493420, at *9 (S.D.
Ohio Nov. 2, 2016).
Procedural Default
Respondent also contends that Petitioner has procedurally default certain claims.
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). 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. Id.; Anderson v. Harless, 459
U.S. 4, 6, 103 (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

23

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 do so 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 claims on their merits, 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 defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a
federal habeas claim is 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

24

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, a 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 v. Carrier, 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 the claim of ineffective
assistance of counsel is procedurally defaulted, the 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. The Supreme Court explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the procedural-default
doctrine in Coleman: “In the absence of the independent and adequate state
ground doctrine in federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in state court. The
25

independent and adequate state ground doctrine ensures that the States' interest in
correcting their own mistakes is respected in all federal habeas cases.” 501 U.S.,
at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again considered the interplay
between exhaustion and procedural default last Term in O'Sullivan v. Boerckel,
526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter
doctrine was necessary to “ ‘protect the integrity’ of the federal exhaustion rule.”
Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be utterly defeated if the
prisoner were able to obtain federal habeas review simply by “ ‘letting the time
run’ ” so that state remedies were no longer available. Id., at 848, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be no less frustrated were
we to allow federal review to a prisoner who had presented his claim to the state
court, but in such a manner that the state court could not, consistent with its own
procedural rules, have entertained it. In such circumstances, though the prisoner
would have “concededly exhausted his state remedies,” it could hardly be said
that, as comity and federalism require, the State had been given a “fair
‘opportunity to pass upon [his claims].’ ” Id., at 854, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis added) (quoting Darr
v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on the merits
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 v. Carrier, 477 U.S. 478, 495–96 (1986)).
In claim three, Petitioner also alleges that defense counsel and the prosecutor tainted the
jury during voir dire and caused juror bias. In claim four, Petitioner alleges that he was denied a
fair trial based on prosecutorial misconduct because the prosecutor and police coerced and
intimidated Karen Monroe into testifying against him, and police lied. In claim six, Petitioner
alleges that he was denied the effective assistance of trial counsel based on his attorney’s failure
to investigate, prepare a defense, or consult with him prior to trial. In claim seven, Petitioner
26

alleges that the police and prosecutor forced the victim to pursue the charges against him, and the
prosecutor fraudulently concealed exculpatory evidence, i.e., a letter dated April 23, 2008, and a
document dated June 25, 2010.4

In claim eight, Petitioner alleges that the evidence was

constitutionally insufficient to sustain his domestic violence conviction. In claim nine, Petitioner
alleges that the evidence was constitutionally insufficient to sustain his abduction conviction.
All these claims, being readily apparent from the face of the record, should have been raised on
direct appeal, where Petitioner was represented by new counsel. However Petitioner failed to
raise any of these claims on direct appeal, with the exception of his claim that he was denied the
effective assistance of counsel based on his attorney’s failure to consult with him prior to trial.
See State v. Boddie, 2011 WL 2586717, at *3.

Further, he may now no longer present these

claims to the state courts by operation of Ohio's doctrine of res judicata. See State v. Cole, 2
Ohio St.3d (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175
(1967) (claims must be raised on direct appeal, if possible, or they will be barred by the doctrine
of res judicata.). The state courts were never given an opportunity to enforce this procedural
rule, however, due to the nature of Petitioner's procedural default.
Petitioner also procedurally defaulted his claim of the denial of the effective assistance of
trial counsel based on his attorney’s alleged failure to consult with him because he failed to file a
timely appeal to the Ohio Supreme Court. See Backie v. Moore, No. 1:13-cv-00507, 2015 WL
2137164, at *11 (N.D. Ohio May 7, 2015)(citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.
2004)). The Ohio Supreme Court denied Petitioner’s motion for a delayed appeal. The United
States Court of Appeals for the Sixth Circuit has held that the Ohio Supreme Court’s denial of a

4

 Petitioner attached these documents to his Motion for Reconsideration Pursuant to App.R. 26(B) (Doc. 8-1,
PageID# 202-223).   

27

motion for leave to file a delayed appeal constitutes a procedural ruling sufficient to bar federal
habeas corpus review. Bonilla v. Hurley, 370 F.3d at 497.
Petitioner also attempted, in the first instance, to present some of his claims to the state
courts in his July 26, 2011, and June 1, 2012, petitions for post conviction relief; however, the
trial court explicitly refused to address those claims as barred under Ohio’s doctrine of res
judicata, and the appellate court affirmed that decision. State v. Boddie, 2013 WL 4973012.
Moreover, Petitioner never filed a timely appeal in post conviction proceedings to the Ohio
Supreme Court and he may now no longer do so, because Ohio does not permit delayed appeals
in post conviction proceedings. Ohio S.Ct.Prac.R. 7.01(4)(c)(“The provision for delayed appeal
does not apply to appeals involving postconviction relief[.]”) See, e.g., Dixon v. Warden,
Richland Correctional Institution, 2017 WL 972122, at *2 (S.D. Ohio March 13,
2017)(Petitioner procedurally defaulted his claim of the denial of the effective assistance of trial
counsel where trial court denied the post conviction petition as untimely and the Petitioner failed
to file a timely appeal); Carley v. Hudson, 563 F.Supp.2d 760, 775 (N.D. Ohio 2008)(enforcing
procedural default based on the petitioner’s failure to file a timely appeal in post conviction
proceedings).
Moreover, Ohio's doctrine of res judicata is adequate and independent under the third
part of the Maupin test. To be “independent,” the procedural rule at issue, as well as the state
court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S.
at 732–33. To be “adequate,” the state procedural rule must be firmly established and regularly
followed by the state courts.

Ford v. Georgia, 498 U.S. 411 (1991).

“[O]nly a ‘firmly

established and regularly followed state practice’ may be interposed by a State to prevent
subsequent review by this Court of a federal constitutional claim.” Id. at 423 (quoting James v.

28

Kentucky, 466 U.S. 341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149
(1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964). The United States Court
of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the
Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440
F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001);
Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22
(6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998).
Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to
review the merits of claims because they are procedurally barred. See State v. Cole, 2 Ohio St.3d
at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine of res judicata serves the
state's interest in finality and in ensuring that claims are adjudicated at the earliest possible
opportunity. With respect to the independence prong, the Court concludes that Ohio's doctrine
of res judicata in this context does not rely on or otherwise implicate federal law. Accordingly,
the Court is satisfied from its own review of relevant case law that the Perry rule is an adequate
and independent ground for denying relief. The Court concludes, therefore, that Petitioner has
waived claims three, four, and six through nine for federal habeas corpus review.
Petitioner may still secure review of the merits of these claims if he demonstrates cause
for his failure to follow the state procedural rules, 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)). A
petitioner's pro se status, ignorance of the law, or ignorance of procedural requirements are
insufficient bases to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 498. Instead, in

29

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.
Petitioner’s claim of the denial of the effective assistance of appellate counsel cannot
constitute cause for Petitioner’s procedural default, since the state appellate court denied
Petitioner’s Rule 26(B) application as untimely, and that claim is likewise procedurally
defaulted. See Edward, 529 U.S. at 451-52. The Sixth Circuit has recognized that the timeliness
requirement of Ohio Appellate Rule 26(B) is an adequate and independent state ground for
denying relief. Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008).
The United States Supreme Court has also held that a claim of actual innocence may be
raised “to avoid a procedural bar to the consideration of the merits of [a 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 in reaching
the merits of an otherwise procedurally-barred habeas petition.

Schlup, 513 U.S. 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 to procedural default allows a petitioner to pursue his
constitutional claims if it is “more likely than not” that new evidence – not previously presented
at trial – would allow no reasonable juror to find him guilty beyond a reasonable doubt. Souter

30

v. Jones, 395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the Sixth Circuit explained this
exception as follows:
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.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that Respondent’s motion to dismiss
(Doc. 8) be GRANTED, and that this action be DISMISSED.
Petitioner’s motions for the appointment of counsel, for the release of exculpatory
evidence, and for an evidentiary hearing (Docs. 9, 13) are DENIED.
Respondent’s Motion to Strike Petitioner’s Notice of Supplement to the Record (Doc. 15)
is GRANTED.

31

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
May 15, 2017

32

33