Scott v. Warden, Noble Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS: It is recommended this action be dismissed as procedurally defaulted re 1 Petition for Writ of Habeas Corpus filed by Anthony A. Scott. Objections to R&R due by 1/3/2018. Signed by Magistrate Judge Norah McCann King on 12/20/2017. (daf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified on text on 12/20/2017 (jlk).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTHONY A. SCOTT,
Petitioner,
Case No. 2:17-cv-0053
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

v.
WARDEN, NOBLE
CORRECTIONAL INSTITUTION,
Respondent.

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), Respondent’s Return of
Writ (Doc. 7), Petitioner’s Reply (Doc. 8), and the exhibits of the parties. For the reasons that
follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:
On May 4, 2012, under case 2012–CR–00244, Appellant Scott was
indicted in Licking County on counts of felony possession of
cocaine, attempted murder, felonious assault, trafficking in cocaine
with a juvenile specification, and one count of misdemeanor
possession of drug paraphernalia. Additionally, appellant was
indicted on several attendant firearm and forfeiture specifications.
On May 18, 2012, appellant was additionally indicted under case
number 12–CR–00280 for having weapons while under a
disability. The indictments were then consolidated by the trial
court.
On April 30, 2013, appellant appeared before the trial court for a
change of plea hearing. At this hearing, in exchange for appellant's
plea, the State agreed to dismiss the firearm specifications

associated with Counts I through IV and make a jointly
recommended sentence of twelve years. Appellant agreed to
withdraw his previously entered not guilty pleas, to enter Alford
pleas to the remaining counts, and withdraw his pending motion to
dismiss and to suppress.
Following a plea colloquy, the trial court accepted appellant's
Alford pleas. The trial court thereupon sentenced appellant under
case 2012–CR–00244 to a four-year prison term on Count I, a fiveyear prison term on Count II, a one-year prison term on Count IV,
and a thirty-day jail sentence on Count V. The court merged
Counts II and III for sentencing. Appellant was also sentenced to
three years in prison under case 2012–CR–00280. The trial court
ordered all counts to run consecutively. Appellant was granted 370
days of credit towards his sentence. The court also issued, inter
alia, post release control orders in each case.
Appellant then filed a direct appeal to this Court, raising issues of
speedy trial rights, manifest weight of the evidence, and
sufficiency of the evidence.
See State v. Scott, 5th Dist. Licking No. 13–CA–45, 2014–Ohio–
456 (“Scott I”). In our decision issued February 7, 2014, we
overruled the assigned errors based on our conclusion that
appellant had waived said claims via his Alford guilty pleas. The
Ohio Supreme Court did not accept jurisdiction to hear his
requested appeal from our decision. See State v. Scott, 142 Ohio
St.3d 1519, 33 N.E.3d 66, 2015–Ohio–2341.
On August 31, 2015, appellant filed a motion for post-conviction
relief in the trial court, alleging that trial counsel was ineffective
for advising him to enter his Alford pleas. Appellant attached his
own affidavit in support of the petition.
On October 12, 2015, the trial court denied appellant's postconviction petition, finding it to be untimely and inadequately
supported by the attached evidence.
Appellant filed a notice of appeal as to each of the two trial court
case numbers on October 26, 2015. He herein raises the following
sole Assignment of Error:
“I. TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT WHEN IT FAILED TO HOLD A HEARING
PURSUANT TO R.C. 2953.21 AND FAILED TO VACATE THE
JUDGMENT OF CONVICTION FOR REASON THAT TRIAL
2

COUNSEL WAS INEFFECTIVE WHEN COUNSEL GAVE
INCORRECT
LEGAL
ADVICE
THAT
INDUCED
DEFENDANT TO ENTER A[N] UNKNOWINGLY [SIC],
INVOLUNTARILY [SIC], AND UNINTELLIGENT AFFORD
[SIC] / NO CONTEST PLEAS [SIC].”
State v. Scott, Nos. 15 CA 81, 15 CA 82, 2016 WL 3365756, at *1-2 (Ohio App. 5th Dist. June
15, 2016) (footnotes omitted). As noted supra, the state appellate court refused to address the
merits of Petitioner’s claims that he was denied his right to a speedy trial, that his convictions
were against the manifest weight of the evidence, and that the evidence was constitutionally
insufficient to sustain his convictions, reasoning that Petitioner had waived those claims when he
pleaded guilty:
We shall address all three of Appellant's assignments of error
together as we find their resolution is controlled by the same legal
principle.
At the outset we must resolve what plea Appellant entered. Though
not specifically identified as such in his brief to this Court,
Appellant maintained during oral argument he entered Alford “no
contest” pleas. While this Court is quite familiar with an Alford
guilty plea, in the 70 plus collective years of this panel's
experience on the bench, we have never before heard of an Alford
“no contest” plea.
Appellant maintains the two plea forms he executed demonstrate
he entered an Alford no contest Plea. Upon our review of the
original forms, we find it plausible Appellant intended to do so,
although any intent is difficult to determine based upon the
numerous interlineations of printed plea types; circlings of plea
types; apparent attempts to retract some circlings; handwritten
arrow symbols; handwritten “Alford Guilty” and “Guilty”; and two
additional separate sets of Appellant's handwritten initials near the
area where all of the above changes were made to each of the two
plea forms. The motion is further clarified/muddled by the use of
two different colors of ink. While we believe the plea forms
arguably support Appellant's claim he intended to enter an Alford
no contest plea, we have no uncertainty as to what plea he actually
entered during the change of plea hearing.

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We have reviewed the transcript and find the prosecutor
specifically states the defendant will be entering an Alford guilty
plea on three separate times (Tr. at p. 6). Subsequently, while
engaging Appellant in a colloquy regarding the rights he was
waiving, the trial court specifically identified the plea as an Alford
guilty plea on three separate occasions. (Tr. at p. 10, 12, and 19).
At no time during the sentencing hearing did Appellant or his
counsel ever correct the prosecutor or trial court, or assert a
misunderstanding as to the type of plea being entered.
And of even greater significance is the fact the trial court's
Judgment Entry unequivocally states it accepted Appellant's
“Alford plea of Guilty.”
Based on the foregoing, this court finds Appellant entered Alford
guilty pleas to the charges.
“By Entering an Alford plea the defendant waives review of all
alleged errors, except those errors that may have affected the entry
of the plea.” State v. Baker (7th District), 2013–Ohio–862.2 This
Court specifically held in State v. Tucker (5th District), 2008–
Ohio–4986, the entering of an Alford plea has “the effect of
waiving [a defendant's] right to appeal from the denial of his
speedy trial motion.” Id., at ¶ 10.3. Because a guilty plea waives a
defendant's right to challenge the sufficiency or weight of the
evidence and an Alford plea has the same legal effect as a guilty
plea, we find the Appellant has also waived those claims herein.
See, State v. McCann (4th District) 2011–Ohio–3339, at 21: Kline,
J. concurring.
Appellant's three assignments of error are overruled.
State v. Scott, No. 13-CA-45, 2014 WL 545968, at *2-3 (Ohio App. 5th Dist. Feb. 7, 2014). On
On June 15, 2016, the appellate court affirmed the trial court’s dismissal of Petitioner’s post
conviction petition as untimely because it was filed approximately 800 days late. State v. Scott,
2016 WL 3365756, at *2. On November 9, 2016, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. State v. Scott, 147 Ohio St.3d 1437 (Ohio 2016).1

1

On February 27, 2015, the appellate court denied Petitioner’s application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B), in which he claimed that he was given incorrect legal advice resulting in an invalid plea. The
appellate court stated:

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On January 17, 2017, Petitioner filed this pro se Petition.2 He asserts as follows:
Petitioner’s Alford no contest plea[] was entered upon incorrect
legal advice, thus not knowingly, intelligently or voluntarily
entered.
Counsel advised Petitioner to make a[n] Alford no contest plea so
Petitioner would not waive his right to challenge the violation of
his right to a speed[y] trial, manifest weight argument and
sufficien[cy of] evidence. Petitioner[] followed counsel[’s] advice
and entered what he thought was a plea that [en]abled him to
present his arguments on appeal. He never thought his arguments
would be waived.
Respondent contends that Petitioner’s claim has been waived and is without merit.
Procedural Default
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
must first 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)).

[S]uch claims are outside the appellate record. Accordingly, appellate counsel would not have
been ineffective for failing to raise such claim on direct appeal. This Court’s finding Appellant
entered an Alford guilty plea still controls the disposition of Appellant’s direct appeal. Appellant’s
potential relief, if any, is through post-conviction relief proceedings or a motion to withdraw his
plea pursuant to Crim. R.32.1.
Judgment Entry (Doc. 7-1, PageID# 248). On June 24, 2015, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. Entry (Doc. 7-1, PageID# 263).
2

On April 5, 2016, this Court dismissed Petitioner’s prior § 2254 petition, without prejudice, as unexhausted. Scott
v. Warden, Noble Correctional Institution, Case No. 2:15-cv-2638 (S.D. Ohio Apr. 5, 2016).

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However, 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” describes 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 such that the State has not had 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. One aspect 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. This
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 a petitioner's failure to observe a state procedural rule. See
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

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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).
As 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 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.’” Id. at 452 (quoting Murray, 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, the petitioner must be able to “satisfy the ‘cause and prejudice’ standard
with respect to the ineffective-assistance claim itself.” Edwards, at 450–51.
If, after considering all four factors of the Maupin test, a court concludes that a
procedural default 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

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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).
Petitioner raised the same claim he raises this case in state post conviction proceedings;
however, the state appellate court dismissed those proceedings as untimely:
In his sole Assignment of Error, appellant essentially maintains the
trial court erred in denying his post-conviction petition without
conducting a hearing, where he has asserted that he believed at trial
he was entering an Alford “no contest” plea. We disagree.
We first note the pertinent jurisdictional time requirements for a
post-conviction petition (not involving a death sentence) are set
forth in R.C. 2953.21(A)(2) as follows: “Except as otherwise
provided in section 2953.23 of the Revised Code, a petition under
division (A)(1) of this section shall be filed no later than three
hundred sixty-five days after the date on which the trial transcript
is filed in the court of appeals in the direct appeal of the judgment
of conviction or adjudication * * *. If no appeal is taken, except as
otherwise provided in section 2953.23 of the Revised Code, the
petition shall be filed no later than three hundred sixty-five days
after the expiration of the time for filing the appeal.”
In order for a trial court to recognize an untimely or successive
post-conviction petition pursuant to R.C. 2953.23(A)(1), both of
the following requirements must apply:
“(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner
must rely to present the claim for relief, or, subsequent to the
period prescribed in division (A)(2) of section 2953.21 of the
Revised Code or to the filing of an earlier petition, the United
States Supreme Court recognized a new federal or state right that
applies retroactively to persons in the petitioner's situation, and the
petition asserts a claim based on that right.
“(b) The petitioner shows by clear and convincing evidence that,
but for constitutional error at trial, no reasonable factfinder would
have found the petitioner guilty of the offense of which the
petitioner was convicted * * *.”
A court has no jurisdiction to hear an untimely petition for postconviction relief unless the movant meets the requirements in R.C.

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2953.23(A). State v. Demastry, 5th Dist. Fairfield No. 05CA14,
2005–Ohio–4962, ¶ 15.
In the case sub judice, we note the transcript in appellant's direct
appeal (Scott I) was filed on June 25, 2013. Appellant filed his
post-conviction motion on August 31, 2015, nearly eight-hundred
days later, well past the aforementioned statutory deadline of threehundred sixty-five days. Despite this, having reviewed the record
and the pertinent briefs, we find appellant completely fails to
demonstrate compliance with the untimeliness requirements of
R.C. 2953.23(A)(1). Cf. State v. Sturkey, 5th Dist. Muskingum No.
CT2006–0087, 2007–Ohio–5701, ¶¶ 11–18. Furthermore, although
it is probably an academic observation at this point, we have
previously concluded: “ * * * [I]t is questionable that the
‘constitutional error at trial’ criterion of R.C. 2953.23(A)(1)(b) can
be met where the defendant seeking PCR relief [sic] was convicted
pursuant to a guilty plea, not as a result of a trial.” State v. Pepper,
5th Dist. Ashland No. 13 COA 019, 2014–Ohio–364, ¶ 26.
In regard to appellant's claim of deprivation of a hearing, we note
[that a] trial court's decision regarding whether or not to conduct an
evidentiary hearing in post-conviction matters is governed by the
standard of abuse of discretion. State v. Bocook, 5th Dist.
Muskingum No. CT2015–0025, 2015–Ohio–3996, ¶ 22, citing
State ex rel. Richard v. Seidner (1996), 76 Ohio St.3d 149, 151,
666 N.E.2d 1134. Furthermore, some Ohio courts have held that a
hearing on the merits of a post-conviction petition is unnecessary
where the petition was not timely filed. See, e.g ., State v. Goings,
6th Dist. Lucas No. L–15–1063, 2016–Ohio–544, ¶ 11; State v.
Foster, 10th Dist. Franklin No. 09AP–227, 2009–Ohio–5202, ¶ 8.
However, in the interest of justice, we make the following
observations. In our decision on appellant's direct appeal, we
stated: “While we believe the plea forms arguably support
Appellant's claim he intended to enter an Alford no contest plea,
we have no uncertainty as to what plea he actually entered during
the change of plea hearing. [The transcript reveals] the prosecutor
specifically states the defendant will be entering an Alford guilty
plea on three separate times. * * * At no time during the sentencing
hearing did Appellant or his counsel ever correct the prosecutor or
trial court, or assert a misunderstanding as to the type of plea being
entered.” Scott I at ¶¶ 15–16. We then concluded that appellant had
entered Alford guilty pleas to the charges. Id. at ¶ 18.
Appellant presently seeks to convince us otherwise by directing us
to the affidavit in support of his PCR petition, wherein he averred
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inter alia that he entered his plea on April 30, 2013 “on the
mistaken belief that I was actually entering a [sic] Alford No
Contest” and that “[h]ad I known that the Alford plea I entered
would prevent me from challenging my conviction I would not
have entered a [sic] Alford plea and chose to pursue a plea that
would not prevent a challenge to my conviction on appeal, such as
a No Contest Plea.” See Petition for Post–Conviction Relief,
August 31, 2015.
Nonetheless, a defendant advancing a post-conviction petition is
required to present evidence which meets a minimum level of
cogency to support his or her claims. See State v. Amstutz, 5th Dist.
Stark No.2000–CA–00047, 2001 WL 46324, citing State v. Cole
(1982), 2 Ohio St.3d 112, 115. A petitioner's self-serving affidavit
generally does not meet his or her minimum level of cogency. Id.,
citing State v. Kapper (1983), 5 Ohio St.3d 36, 38. Accordingly,
upon review, we find no abuse of discretion, under the present
circumstances, in the trial court's decision to rule upon appellant's
PCR petition without holding a hearing.
Appellant's sole Assignment of Error is therefore overruled.
For the foregoing reasons, the judgment of the Court of Common
Pleas, Licking County, Ohio, is hereby affirmed.
State v. Scott, 2016 WL 3365756, at *2-3. In view of the appellate court’s decision affirming the
trial court’s dismissal of Petitioner’s post conviction petition as untimely, this Court concludes
that Petitioner has procedurally defaulted the off-the-record claim that he now presents for
review in these proceedings. See, e.g., Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014) (the
petitioner procedurally defaulted his claim by failing to file a timely petition for post conviction
relief); Foster v. Warden, Chillicothe Correctional Inst., 575 Fed.Appx. 650 (6th Cir. 2014)
(same). Moreover, any alternative ruling on the merits by the state appellate court did not
forgive the waiver or otherwise revive the claim for purposes of habeas corpus review. See
Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (“[A] state court need not fear reaching the merits
of a federal claim in an alternative holding.”); Bowling v. Parker, 344 F.3d 487, 498 (6th Cir.

10

2003) (where state court's dismissal of claim on merits constitutes an alternative holding, federal
habeas court will consider the claim procedurally defaulted).
Petitioner may still secure review of the merits of these claims if he can demonstrate
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)).
However, a petitioner's pro se status, ignorance of the law, or ignorance of procedural
requirements are insufficient to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 498.
Instead, 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). As cause for this procedural default, Petitioner states that his appellate attorney failed
to advise him of the time constraints for filing a petition for post conviction relief, and that he did
not learn about the possibility of filing a post conviction petition until February 27, 2015, when
the appellate court denied his Rule 26(B) application. Petitioner’s Response to Respondent’s
Answer/Return of Writ (Doc. 8, PageID# 436-37.)
Where “the initial-review collateral proceedings is the first designated proceeding for a
prisoner to raise a claim of ineffective assistance at trial,” the inadequate assistance of counsel in
those proceedings may serve as sufficient cause for a prisoner's procedural default of a claim of
ineffective assistance of trial counsel. Martinez v. Ryan, 566 U.S. 1, 9-11 (2012); see Hodges v.
Colson, 727 F.3d 517, 530-31 (6th Cir. 2013). Therefore, a federal habeas court may find cause
sufficient to excuse a petitioner's procedural default
[w]here (1) the claim of “ineffective assistance of trial counsel”
was a “substantial” claim; (2) the “cause” consisted of there being
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“no counsel” or only “ineffective” counsel during the state
collateral review proceeding; (3) the state collateral review
proceeding was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state law
requires that an “ineffective assistance of trial counsel [claim] . . .
be raised in an initial-review collateral proceeding.” Martinez,
supra, at [13-14, 17].
Trevino v. Thaler, 569 U.S. 413, 423 (2013). Additionally, an attorney's failure to provide his
client with relevant information regarding the filing of a petition for post conviction relief may
constitute cause for a petitioner's failure to pursue a timely post conviction petition. Gunner v.
Welch, 749 F.3d 511, 516-17 (6th Cir. 2014).
However, “‘an ineffective-assistance-of-counsel claim asserted as cause for the
procedural default of another claim can itself be procedurally defaulted.’” Hodges, 727 F.3d at
530 (quoting Edwards, 529 U.S. at 453). Additionally, “a petitioner is required to exhaust his
cause ground in state court.”

Williams v. Lazaroff, 648 Fed.Appx. 548, 553 (6th Cir.

2016)(citing Edwards, at 452). Accordingly, the petitioner must present to the state courts his
claim of ineffective assistance of counsel based on the alleged failure to advise him of the
deadline for instituting post conviction proceedings. Id. In the case presently before this Court,
although Petitioner states that he “brought this issue to the attention of the appellate court” Reply
(Doc. 8, PageID# 438), the record does not support that statement. In other words, the record
does not establish that Petitioner ever presented to the state courts his claim that counsel
performed in a constitutionally ineffective manner by failing to advise him of the time limits
governing post conviction proceedings.

Petitioner did not raise the issue in Rule 26(B)

proceedings, and it does not appear that he asserted this claim as cause for the untimely filing of
his petition for post conviction relief. See Williams v. Lazaroff, 648 Fed.Appx. 548, 553 (in
Ohio, a claim that appellate counsel was ineffective with respect to advising a client about post-

12

conviction proceedings is properly raised by way of an application to reopen the appeal pursuant
to Ohio Appellate Rule 26(B)) (citing Gunner, 749 F.3d at 515 (noting that Gunner argued in his
Rule 26(B) application that appellate counsel had been ineffective for failing to advise him on
the time limit for state post-conviction relief)).
Petitioner is unable to establish cause because he has never
presented this claim of the denial of the effective assistance of
counsel to the state courts. See Andrews v. Warden, No. 1:13-cv727, 2014 WL 10435020, at *17 (S.D. Ohio Oct. 27, 2014)(noting
that “[a] claim that is itself procedurally defaulted cannot be used
as cause to excuse another procedurally defaulted claim.”) (citing
Goldberg v. Money, 692 F.3d 534, 537 (6th Cir. 2012)) (citing
Edwards v. Carpenter, 529 U.S. 446, 453 (2000)(other citations
omitted)). “‘[A] claim of ineffective assistance’,” . . . 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 v. Carpenter, 529 U.S. at 452 (quoting Murray v.
Carrier, 477 U.S. at 489)(recognizing that the principles of comity
and federalism that underlie the exhaustion doctrine require that a
claim of the denial of the effective assistance of counsel asserted as
cause for a procedural default must first be raised in state court.)
Foster v. Brunsman, No. 2:09-cv-00214, 2016 WL 2963425, at 2 (S.D. Ohio May 20, 2016).
Consequently, Petitioner cannot use the alleged failure of his appellate counsel to advise him of
the time limits for filing a post-conviction action as cause to excuse his procedural default in
failing to timely institute post-conviction proceedings. See Johnson v. Turner, No. 2:14-cv01908, 2017 WL 2633188, at *4-5 (S.D. Ohio June 19, 2017) (same); Foster, 2016 WL
2963425, at *2 (same). Moreover, the record does not reflect that Petitioner is actually innocent
such that he may nonetheless obtain a merits review of his procedurally defaulted claims. See
Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED as
procedurally defaulted.
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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
December 20, 2017

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