Churchill v. Warden, Southeastern Correctional Complex
ORDER AND REPORT AND RECOMMENDATION: Magistrate Judge grants 1 Motion for Leave to Proceed in forma pauperis, RECOMMENDS dismissing 6 Petition for Writ of Habeas Corpus. Objections to R&R due by 10/19/2017. Signed by Magistrate Judge Kimberly A. Jolson on 10/5/2017. (ew)(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
CASE NO. 2:17-CV-0690
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Doc. 1-2). Petitioner has also filed a Motion for Leave to Proceed in forma
pauperis. (Docs. 1, 3, 5). For good cause shown, the Court GRANTS Petitioner’s Motion for
Leave to Proceed in forma pauperis and ORDERS that Petitioner be allowed to prosecute this
action without prepayment of fees or costs and that judicial officers who render services in this
action shall do so as if the costs had been prepaid.
This matter is likewise before the Court on its own motion to consider the sufficiency of
the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons that follow, the Court RECOMMENDS that this action be
Facts and Procedural History
Petitioner was convicted of four counts of breaking and entering on May 27, 2015, in the
Franklin County Court of Common Pleas after entering a plea of guilty. Although Petitioner did
not appeal, he filed a Motion to Withdraw his Guilty Plea on February 19, 2016, alleging
ineffective assistance of trial counsel. The trial court denied Petitioner’s Motion on March 29,
2016, and Petitioner did not file a timely appeal. On June 20, 2016, Petitioner filed a Motion for
Leave to File a Delayed Appeal in the Ohio Court of Appeals, claiming that he was delayed in
receiving the trial court’s denial of his Motion for Leave to Withdraw his Guilty Plea due to his
transfer to another institution. The Court of Appeals found that Petitioner failed to set forth good
cause for his failure to file a timely appeal, denied Petitioner’s Motion, and dismissed the case.
See January 25, 2016 Journal Entry in State of Ohio v. Churchill, No. 16AP-460.
Petitioner did not timely appeal the Court of Appeals’ decision to the Ohio Supreme
Court but again filed a Motion for Delayed Appeal, claiming he was unable to get his affidavit of
indigency notarized within the institution. See May 3, 2017 Motion to File Delayed Appeal in
State of Ohio v. Churchill, No. 17-595. On June 21, 2017, the Ohio Supreme Court denied
Petitioner’s Motion to File a Delayed Appeal. See June 21, 2017 Entry in State of Ohio v.
Churchill, No. 17-595.
Petitioner submitted his habeas corpus petition to this Court on August 7, 2017. (Doc. 12). Petitioner asserts the following:
GROUND ONE: Ineffective assistance of counsel for failure to challenge
Indictment for cocaine possession.
On 6-23-14, defendant plead guilty to Indictment 13CR002619, in exchange, the
State agreed not to indict the defendant for possession of cocaine stemming from
an arrest on 5-4-14. However, on 8-8-14, the defendant was indicted. Had
counsel challenged the Indictment the outcome would have been different.
GROUND TWO: Counsel was ineffective for failure to investigate and challenge
“failure to appear,” Indictment.
Although counsel had strong reason to believe that the defendant attempted to self
report on 7-7-14, and again on 7-8-14, failed to investigate Indictment. Had
counsel investigated the outcome would have been different.
GROUND THREE: Counsel was ineffective for failure to preserve speedy trial
and misconsolidating Indictments.
Counsel was ineffective for waiving defendant’s rights to speedy trial, even
though defend[ant] refused to sign waiver. Counsel added two (2) more
Indictment to each waiver, even though the Indictments were not listed on the
State’s motion to consolidate.
GROUND FOUR: Counsel was ineffective for giving incorrect legal advice
which resulted in client pleading guilty.
Counsel told defendant that he was facing 13.5 years if he went to trial and lost
and used incorrect court documentation to support his claim. Had counsel
correctly advised defendant, defendant would not have pled guilty.
(Id. at 6–11).
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 the prisoner fails to do so, but still has an avenue open to present the claims, then the petition
is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4,
6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust 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). This Court may sua sponte raise the issue of
procedural default when conducting preliminary review of the habeas corpus petition under Rule
4. See Watkins v. Warden, Dayton Corr. Inst., No. 2:16-cv-00501, 2016 WL 4394138, at *2
(S.D. Ohio Aug. 18, 2016) (“[A]lthough federal courts are not required to raise procedural
default sua sponte, neither are they precluded from doing so.”).
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. As the Supreme Court found 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 to determine if a federal
habeas claim is waived by the 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 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 the failure to follow the
procedural rule and the alleged constitutional error caused actual prejudice. 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, 95 (6th Cir. 1985).
Here, Petitioner alleges that he presented his claims in the Motion to Withdraw his Guilty
Plea. Even taking that to be true, he failed to file a timely appeal of the trial court’s denial of the
Motion to the Ohio Court of Appeals. Further, the Court of Appeals denied Petitioner’s Motion
to File a Delayed Appeal. Again, Petitioner failed to file a timely appeal of that decision and
sought leave to file a delayed appeal in the Ohio Supreme Court. See January 25, 2016 Journal
Entry in State of Ohio v. Churchill, No. 16AP-460. Like the Court of Appeals, the Ohio
Supreme Court denied Petitioner’s Motion to File a Delayed Appeal. See June 21, 2017 Entry in
State of Ohio v. Churchill, No. 17-595.
The denial of a motion for leave to file a delayed appeal constitutes a procedural ruling
sufficient to bar federal habeas corpus review. See Whitson v. Clipper, No. 1:14-cv-2718, 2015
WL 3905104, at *2-3 (N.D. Ohio June 25, 2015) (the denial of a motion for leave to appeal is an
adequate and independent state procedural ground for foreclosing federal habeas corpus review)
(citing Stone v. Moore, 644 F.3d 342 (6th Cir. 2011)); Callender v. Warden, Ross Corr. Inst., No.
2:16-cv-1120, 2017 WL 3674909, at *6 (S.D. Ohio Aug. 24, 2017). The record, as it stands,
provides nothing that would justify Petitioner’s failure to appeal timely the denial of his Motion
to Withdraw his Guilty Plea. Moreover, there is no indication that he was actually prejudiced by
the alleged constitutional error. Thus, there is no cause and prejudice for this procedural default
warranting merits review. Moreover, Petitioner has the opportunity to respond to the issue of
procedural default by the filing of any objections. See Watkins, 2016 WL 4394138, at *2.
Based on the foregoing, the Court RECOMMENDS that this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
IT IS SO ORDERED.
Date: October 5, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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