Kelly v. Warden, Franklin Medical Center

Filing 12

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Because it is very clear that Kelly cannot prove he was unavoidably prevented from learning the factual predicate of Ground One before the statute of limitations ran, he cannot meet the jurisdictional requi rements of Ohio Revised Code § 2953.23. Therefore, the Magistrate Judge again recommends that the Court should conclude Petitioner has no available state court corrective process and deny the Motion to Dismiss. Objections to R&R due by 11/16/2018. Signed by Magistrate Judge Michael R. Merz on 11/1/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
PATRICK KELLY,
Petitioner,

:

- vs -

Case No. 2:18-cv-19
District Judge George C. Smith
Magistrate Judge Michael R. Merz

RHONDA RICHARD, Warden,
FRANKLIN MEDICAL CENTER,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Respondent’s Objections (ECF No. 9) to
the Magistrate Judge’s Report and Recommendations (ECF No. 8). Petitioner, who is represented
by counsel, has responded to the Objections (Reply, ECF No. 10). District Judge Smith has
recommitted the case for reconsideration in light of the Objections (ECF No. 11).
Respondent seeks dismissal of the Petition because it is “mixed,” containing an
unexhausted claim of ineffective assistance of trial counsel and ineffective assistance of appellate
counsel (Ground One) along with other grounds which are exhausted (Grounds Two, Three, and
Four). The Report concluded that, although this claim could have been presented on direct appeal,
it could have been properly raised in a petition for post-conviction relief under Ohio Revised Code
§ 2953.21, because Petitioner was represented by the same attorney at trial and on appeal.
However, it could not now be presented in that way, because the statute of limitations for such a
petition had expired (Report, ECF No. 8, PageID 333).
Respondent argued that Petitioner could still file a delayed petition for post-conviction
1

relief if he could meet the stringent requirements of Ohio Revised Code § 2953.23(A)(1), to wit,
that he had been “unavoidably prevented” from discovering the relevant facts and that, by clear
and convincing evidence, no reasonable factfinder would have found him guilty but for
constitutional error at trial. Petitioner’s counsel averred he could not meet those requirements
(Reply, ECF No. 6, PageID 328).
In the Motion to Dismiss, Respondent had anticipated this argument. Respondent did not
point to any evidence in the record which would meet the delayed filing requirements. Instead,
Respondent noted whether those requirements can be met is a question of state law and concluded
“[e]ven if it is unlikely that the trial court will entertain a post-conviction petition at this late
juncture, the federal court should still provide the state court the opportunity to exercise its
discretion in favor of the availability of the remedy.” (ECF No. 5, PageID 324). Respondent relied
for that proposition on Cunningham v. Hudson, 756 F.3rd 477, 484-485 (6th Cir. 2014); Wagner v.
Smith, 581 F.3d 410, 419 (6th Cir. 2009); Godbolt v. Russell, No. 01-4002, 82 F. App’x 447, 450
(6th Cir. 2003); Mack v. Bradshaw, No. 1:04 CV 829, 2011 WL 5878395, at *25-26 (N.D. Ohio
Nov. 23, 2011); and Johnson v. Warden, Leb. Corr. Inst., No. 1:09-cv-336, 2010 U.S. Dist. LEXIS
72968, at *31 (S.D. Ohio June 23, 2010) (Wehrman, Mag. J.), adopted, 2010 U.S. Dist. LEXIS
72976 (S.D. Ohio Jul. 20, 2010) (Beckwith, J.). Id. at PageID 324-25.
Distinguishing that authority, the Report concluded requiring Petitioner to attempt a
delayed post-conviction petition would be futile and therefore lack of exhaustion did not bar this
Court from proceeding (Report, ECF No. 8, PageID 335).
The Warden objected strongly:
The Warden objects to the Magistrate Judge’s determination that the
remedy of a delayed post-conviction petition is unavailable because
that decision is reserved to the state courts to make. Kelly failed to
support his position that he could not satisfy the statutory exception
2

for a late petition (ECF No. 6) and the Magistrate Judge appeared to
accept Kelly’s contention at face value.
(Objections, ECF No. 9, PageID 338). The Warden relied on the authority previously cited and
added Ivey v. Warden, Hocking Corr. Facility, No. 1:13-cv-914, 2014 U.S. Dist. LEXIS 181630,
at *17-19 (S.D. Ohio Nov. 12, 2014) (Litkovitz, Mag. J.), adopted, 2015 U.S. Dist. LEXIS 13191
(S.D. Ohio Feb. 3, 2015) (Black, J.); and Houston v. Warden, Warren Corr. Inst., No. 1:15-cv722, 2016 U.S. Dist. LEXIS 104081 (S.D. Ohio Jul. 1, 2016) (Wehrman, Mag. J.), adopted, 2016
U.S. Dist. LEXIS 104077 (S.D. Ohio Aug. 8, 2016) (Dlott, C.J.). Id. at PageID 338-45.

Analysis

28 U.S.C. § 2254(b)(1)(B)(i) provides that state remedies must be exhausted unless “there
is an absence of available State corrective process.” The question of whether a possible state court
remedy is actually “available” is, then, a question of federal law. Both parties agree that
Petitioner’s Ground One is a claim that could have been heard on a petition for post-conviction
relief under Ohio Revised Code § 2953.21 if one had been timely filed. Both parties also agree
that no such petition was timely filed and that the governing Ohio statute on whether a petition can
now be filed is Ohio Revised Code § 2953.23. That statute allows an untimely or successive postconviction petition only if:
(1) Both of the following 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
3

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 or, if the claim challenges a sentence of death that, but for
constitutional error at the sentencing hearing, no reasonable
factfinder would have found the petitioner eligible for the death
sentence.
Ohio Rev. Code § 2953.23(A) (emphasis added).
To satisfy Ohio Revised Code § 2953.23(A)(1)(a), Kelly would have to prove that he could
not have discovered the facts on which he must rely to present his ineffective assistance of trial
counsel and ineffective assistance of appellate counsel claims before the statute of limitations
expired. He plainly cannot do that because those facts – the performance of his attorney at both
trial and appeal – were known to him when they occurred and both the trial and the appeal occurred
before the statute ran1.
To satisfy Ohio Revised Code § 2953.23(A)(1)(b), Kelly would have to prove, by clear and
convincing evidence, that, absent his attorney’s ineffective assistance at trial in “fail[ing] to object
to erroneous jury instructions specifically regarding Count 25, i.e. the State RICO charge which
were contrary to state law and allowed the jury to convict Petitioner without sufficient evidence
and proof on all elements,” no reasonable factfinder could have found him guilty of the RICO
violation. (Petition, ECF No. 1, PageID 6.)
Petitioner’s counsel have asserted he cannot meet that burden. The Warden objects that
the Magistrate Judge has taken that assertion “at face value.” (Objections, ECF No. 9, PageID
338). That is accurate, but the Court has no merits briefing from the Petitioner on Ground One

1

The one-year statute runs from the filing of the record on appeal. Ohio Revised Code § 2953.21(A)(2).

4

because the case is held up at this motion to dismiss stage. On direct appeal, the Fourth District
Court of Appeals held there was sufficient evidence to support conviction on the charge of
engaging in a pattern of corrupt activity. State v. Kelly, 2016-Ohio-8582, 77 N.E.3d 388, ¶¶ 10,
89-95 (4th Dist.). At this point, the Court does not know what part of the instruction actually given
on engaging in a pattern of corrupt activity Petitioner believes was erroneous, why Petitioner
believes it was deficient performance for his trial attorney to fail to object, and how Petitioner
believes he was prejudiced by that failure, all of which he would have to prove by clear and
convincing evidence even to get in the door on a delayed post-conviction petition. Both of
Petitioner’s counsel are experienced criminal defense attorneys; Mr. Edwards has long been a
member of the capital habeas bar in this Court. Thus, it is not unreasonable to accept “at face
value” their assertion that they cannot satisfy Ohio Revised Code § 2953.23(A)(1)(B).
Several Ohio post-conviction remedies have some discretion built into their standards. For
example, there is no definite time limit on a motion for delayed appeal. Board v. Bradshaw, 805
F.3d 769, 773 (6th Cir. 2015). Ohio R. Crim. P. 33(B) provides that a motion for new trial in an
Ohio criminal case must be filed within fourteen days of the verdict or, if based on newly
discovered evidence, within 120 days of the verdict. The Rule recognizes an exception to these
time limits:
If it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the
evidence upon which he must rely, such motion shall be filed
within seven days from an order of the court finding that he was
unavoidably prevented from discovering the evidence within the
one hundred twenty day period.
The text of the Rule, which is unchanged since its adoption in 1973, sets no time limit on filing a
motion for leave to file a delayed motion for new trial. In State v. Pinkerman, 88 Ohio App. 3d
158 (4th Dist. 1993), the court refused to infer any time limit on such a motion. In State v. Davis,
5

131 Ohio St. 3d 1, 2011-Ohio-5028, the Supreme Court of Ohio noted the time limits in the Rule
and held Crim. R. 33 does not otherwise limit the time for filing a motion for a new trial based on
newly discovered evidence. Id. at ¶ 27. Ohio R. App. P. 26(B), which pertains to raising claims
of ineffective assistance of appellate counsel, has a definite time limit, but a court of appeals can
excuse delay for “good cause,” State v. Fox, 83 Ohio St. 3d 514, 515 (1998) (per curiam).
In marked contrast, Ohio courts have no subject matter jurisdiction over a delayed postconviction petition unless it meets the Ohio Revised Code § 2953.23 standards. The requirements
of that statute are mandatory, and a trial court does not have discretion to disregard them in favor
of a late or successive petition; in fact, the bar is jurisdictional. State v. Cunningham, 2016-Ohio3106, 65 N.E.3d 307 (3rd Dist. May 23, 2016) (capital case); State v. Stojetz, 12th Dist. Madison
No. CA2009-06-013, 2010-Ohio-2544 (Jun. 7, 2010) (capital case); State v. Fields, 183 Ohio App.
3d 647 (1st Dist. 2009); State v. Sanders, 9th Dist. Summit No. 22457, 2005-Ohio-4267 (Aug. 17,
2005).
Given the stringent jurisdictional requirements for an untimely post-conviction proceeding
in general and their highly likely application in this case, can this Court decide that remedy is
unavailable, or must it force Petitioner to attempt that remedy?
Relying upon Cunningham, Respondent argues that Petitioner must be sent back to state
court (Objections, ECF No. 9, Page ID 339-40). Cunningham was a capital case before the Sixth
Circuit on denial of habeas relief in which the district court had found a juror bias claim was
unexhausted and procedurally defaulted. 756 F.3d at 481. The circuit court agreed that the claim
was unexhausted “because Cunningham may file a motion for new trial or a second postconviction petition.” Id. at 482. Because it could not tell whether the jurors who revealed the
relevant facts “years later” would have done so within the fourteen days within which a motion for

6

new trial may be filed of right, the court found
[W]e cannot determine whether Cunningham can satisfy the
requirement to file a late motion for a new trial [proof of
unavoidable prevention of discovery] . Given the inability to predict
how the Ohio state courts would rule on such a motion, and because
the determination of whether a habeas petitioner satisfies a state
procedural requirement “is for the state court to make,” Wagner, 581
F.3d at 419, we conclude that the state remedy of a motion for a new
trial may still be available.
Id. at 483. As to a second post-conviction petition, it found the record was unclear whether
Cunningham was unavoidably prevented2 from discovering the same facts. It could find only two
Ohio cases applying that standard in a juror misconduct case which diverged in their treatment of
the “unavoidably prevented” issue. It concluded that “Cunningham may still be able to pursue a
second post-conviction petition in state court.” Id. at 485. It rejected Judge Patricia Gaughan’s
procedural default finding on the same basis.
The Report distinguished Cunningham in part because it was a capital case, where the delay
in finality inures to the benefit of the inmate, in contrast to a non-capital habeas case, where the
inmate loses another day of liberty for every day the case is not decided (ECF No. 8, Page ID 334).
Respondent rejects the distinction: “An inmate under a death sentence arguably has a more urgent
need to have his habeas claims heard expeditiously.” (Objections, ECF No. 9, PageID 341.) This
suggestion would never have come from the Assistant Attorneys General who represent the State
in capital cases. Those attorneys routinely and loudly objects to actions by the courts and
petitioners’ counsel that delay finality. A death row inmate has no urgent need for finality so long
as a stay of execution is in place. Jeronique Cunningham remains on death row and does not
presently have a scheduled execution date, although the schedule is full through January 20233.

2

Note that Ohio’s delayed new trial rule and Ohio Revised Code § 2953.23 use the same “unavoidably prevented”
language.
3
Execution Schedule available at http://drc.ohio.gov/execution-schedule, visited November 1, 2018.

7

When Cunningham’s case was returned to the Allen County Court of Common Pleas
dismissed both the motion for new trial and the successive post-conviction petition. State v.
Cunningham, supra., at ¶ 8. The Third District Court of Appeals affirmed, noting the jurisdictional
bar raised by Ohio Revised Code § 2953.23(A), and the lack of proof on either the “unavoidably
prevented” prong and the lack of proof of guilt prong. Id. at ¶ 19-23.
In Cunningham’s case, the “unavoidably prevented” prong left room for trial court fact
finding and weighing. That does not exist in this case where it is indisputable that Kelly knew the
relevant facts during trial, as soon as they happened. Treating Cunningham as published binding
circuit precedent, it does not require sending Kelly back to state court when he cannot possibly
satisfy the unavoidably prevented prong.
But Cunningham is not the only relevant circuit precedent. In Moore v. Mitchell, 708 F.3d
760, 776 (6th Cir. 2013), the circuit court upheld this Court’s conclusion that one of the Moore’s
claims never presented to the Ohio courts was procedurally defaulted because he could not satisfy
the requirements of Ohio Revised Code § 2953.23. It did not require this Court to send the case
back to state court to determine whether or not Ohio Revised Code § 2953.23 was satisfied.
Similarly, in Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006), the circuit court affirmed a
procedural default finding when the relevant claim had not been appealed to the Supreme Court of
Ohio without requiring the petitioner to first attempt a delayed appeal to that court.
In general, in applying the procedural default doctrine, district courts assume the state
courts would apply their ordinary procedural rules to bar a claim without requiring a state court
order to that effect. The Sixth Circuit has expressly recognized the propriety of this practice:
That is, forfeiture by failure to exhaust entails a legal fiction, of
sorts. The state court has not rejected an appeal based on a state rule
violation; there is no declaration by the state court of an independent
and adequate state ground to which the federal court must defer.
8

Instead, the federal court makes a presumption that the state court
would reject the appeal on independent and adequate state grounds
if the petitioner tried to file it. But, by declaring the claim forfeited,
the federal court saves the petitioner and the state court from
respectively preparing and rejecting a futile filing. The federal court
then views the claim through the lens of procedural default to
determine whether there is cause and prejudice to excuse the default.
In short, the crux of forfeiture by failure to exhaust is that the federal
court's default decision rests upon a presumption about what the
state court would do, rather than respect for what a state court
actually did.
Abdur'Rahman v. Bell (In re Abdur'Rahman), 392 F.3d 174, 186-187 (6th Cir. 2004), vacated on
other grounds, 545 U.S. 1151 (2005). Thus, there is no ironclad rule in habeas corpus that any
state law question which could theoretically be decided by a state court must be sent back to that
court to test the theory.

Conclusion

Because it is very clear that Kelly cannot prove he was unavoidably prevented from
learning the factual predicate of Ground One before the statute of limitations ran, he cannot meet
the jurisdictional requirements of Ohio Revised Code § 2953.23. Therefore, the Magistrate Judge
again recommends that the Court should conclude Petitioner has no available state court corrective
process and deny the Motion to Dismiss.

November 1, 2018.
s/ Michael R. Merz
United States Magistrate Judge

9

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party=s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

10