Lytle v. Warden, Pickaway Correctional Institution

Filing 14

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Daniel W. Lytle. It is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 1/10/2019. Signed by Magistrate Judge Chelsey M. Vascura on 12/27/2018. (daf)(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
DANIEL W. LYTLE,
CASE NO. 2:18-CV-529
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ, and
the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that
this action be DISMISSED.
I.

Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
{¶ 2} The charges against appellant arose from a series of threats and violent acts
toward his estranged wife, Tammy Lytle. The first of these involved a break-in at
Tammy's apartment in the early morning hours of October 28, 2012, in which
appellant allegedly kicked down the apartment door and held a knife to her throat.
Subsequently, at various times through November and December 2012, appellant
allegedly engaged in conversations and preparatory actions with other individuals
to arrange the murder or disfigurement of Tammy.
{¶ 3} The trial court's judgment entry contains two errors on its face: The
kidnapping conviction is entered in error on a charge that was dismissed before
trial, and the jury's guilty verdict on a further charge of conspiracy to commit
kidnapping is not addressed in the entry at all. To ascertain the posture of this
appeal, we must therefore recapitulate the basic procedural history of the case in
detail, bearing in mind that a trial court speaks through its journal and that any
defects in the entry are paramount. State v. Miller, 127 Ohio St.3d 407, 2010–Ohio–

5705. “ ‘A court of record speaks only through its journal and not by oral
pronouncement or mere written minute or memorandum.’ ” State v. Osie, 140 Ohio
St.3d 131, 2014–Ohio–2966, ¶ 83, quoting Schenley v. Kauth, 160 Ohio St. 109,
113 (1953), paragraph one of the syllabus.
{¶ 4} The Franklin County Grand Jury originally returned an eight-count
indictment: Count 1 alleged conspiracy to commit aggravated murder; Count 2
alleged aggravated burglary; Count 3 alleged aggravated robbery; Count 4 alleged
kidnapping; Count 5 alleged violation of a protection order; Count 6 alleged
abduction; Count 7 alleged domestic violence; and Count 8 alleged conspiracy to
commit kidnapping.
{¶ 5} On the eve of trial, the prosecution submitted an entry to amend the
indictment, dropping the domestic violence and kidnapping charges and changing
the conspiracy to commit aggravated murder charge to conspiracy to commit
murder. The amended indictment renumbered the counts as follows: Count 1
alleged conspiracy to commit murder; Count 2 alleged aggravated burglary; Count
3 alleged aggravated robbery; Count 4 alleged violation of a protection order; Count
5 alleged abduction; and Count 6 alleged conspiracy to commit kidnapping. The
case went to trial on the charges as alleged and numbered in the amended
indictment, and the jury received verdict forms suitably numbered and defined for
each charge.
{¶ 6} The jury returned guilty verdicts on all counts except Count 3, aggravated
robbery, for which it returned a verdict of not guilty. At the sentencing hearing, the
trial court verbally and accurately announced the verdicts. The court logically
determined that Counts 2 and 4, respectively aggravated burglary and violation of
a protection order, would merge for sentencing. The court acknowledged that the
state elected to sentence appellant on the aggravated burglary charge pursuant to
this merger. The court further determined that Counts 1 and 6, respectively
conspiracy to commit murder and conspiracy to commit kidnapping, were
committed through separate conduct and would not merge. The court then
announced sentences as follows: for Count 1, conspiracy to commit murder, 11
years; for Count 2, aggravated burglary, 11 years; for Count 5, abduction, 2 years;
and for Count 6, conspiracy to commit kidnapping, 5 years. The sentences for
Counts 1, 2, and 6 were to be served consecutively and that for Count 5
concurrently, for a total of 27 years.
{¶ 7} When reducing the announced sentences to a written entry, however, the trial
court did not duplicate the above determinations. The court erroneously revived the
numbering used in the original indictment and, as a result, sentenced appellant on
the kidnapping charge for which he had been neither tried nor convicted.
Conversely, the court made no finding of guilt and imposed no sentence pursuant
to the jury's guilty verdict on the charge of conspiracy to commit kidnapping.
{¶ 8} In addition to the convictions for conspiracy to commit murder and
aggravated burglary, which retained their original numbering (Counts 1 and 2)
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across both versions of the indictment, the court's entry thus reflects guilt for
“KIDNAPPING, in violation of Section 2905.01, a Felony of the First Degree, as
charged in Count Four of the Indictment; * * * VIOLATING A PROTECTION
ORDER * * *, in violation of Section 2919.27, a Felony of the Third Degree, as
charged in Count Five of the Indictment; and * * * ABDUCTION, in violation of
Section 2905.02, a Felony of the Third Degree, as charged in Count Six of the
Indictment.” Using this partially incorrect numbering, the court then specified the
following sentences: Count 1 (conspiracy to commit murder), 11 years; Count 2
(aggravated burglary), 11 years; Count 5 (violation of a protection order), 2 years;
and Count 6 (abduction), 5 years. The court merged Count 4 (kidnapping) with
Count 2 (aggravated burglary) for sentencing.
{¶ 9} The mere misnumbering of certain counts in the entry's recitation of verdicts
is of little importance with respect to those charges that can be clearly discerned
from the amended indictment, jury verdicts, and verbal pronouncements of the
court at the sentencing hearing. The numbering of charges in an indictment is not
essential to the validity of the charges therein if the elements and operative facts of
the alleged offenses are otherwise clearly stated and distinct for each offense.
Braxton v. Maxwell, 1 Ohio St.2d 134 (1965). For this reason, the state of the record
does not preclude our review of the guilty verdicts for conspiracy to commit
murder, aggravated burglary, violation of a protection order, and abduction. The
charges against appellant were clearly and consistently numbered for these charges
from the time of the amended indictment to the sentencing hearing, and, in
particular, there is no possibility that the trial court's subsequent confusion of
charges had any impact on the jury's consideration of the case. State ex rel.
Douthard v. Warden, 11th Dist. No.2002–T–0145, 2003–Ohio–325.
{¶ 10} The misidentification in the judgment entry of the conspiracy-to-commitkidnapping verdict as kidnapping proper, however, complete with reference to the
kidnapping statute (R.C. 2905.01) rather than the conspiracy statute (R.C. 2923.01)
is more serious and requires us to vacate this conviction and remand the matter
before we can review appellant's conviction for conspiracy to commit kidnapping.
Likewise, the trial court's erroneous renumbering of counts in its recitation of
sentences has resulted in the merger of the wrong counts and imposition of
inapposite sentences and compels resentencing on all charges. Collectively, these
constitute more than mere a scrivener's error and should not be corrected by means
of a nunc pro tunc entry. See generally State v. Henderson, 5th Dist. No.2013–CR–
0409, 2014–Ohio–3121.
{¶ 11} With these considerations settled, we review appellant's three assignments
of error:
[I.] THE TRIAL COURT ERRED IN FAILING TO DISMISS APPELLANT'S
CASE FOR A VIOLATION OF HIS RIGHT TO SPEEDY TRIAL.

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[II.] INSUFFICIENT EVIDENCE EXISTED TO CONVICT APPELLANT AND
CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
[III.] THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENSE
COUNSEL'S MOTION PURSUANT TO RULE 29 AT THE CLOSE OF THE
STATE'S CASE.
State v. Lytle, 10th Dist. No. 13AP-866, 2015 WL 1372810, at *1-3 (Ohio Ct. App. March 26,
2015). On March 26, 2015, the appellate court held as follows:
{¶ 89} In summary, appellant's first assignment of error is overruled. His second
and third assignments of error are overruled in part and mooted to the extent that
they address the charge of conspiracy to commit kidnapping. Appellant's conviction
for kidnapping is vacated. His convictions for aggravated burglary, abduction,
violation of a protection order, and conspiracy to commit murder are affirmed. The
judgment of the Franklin County Court of Common Pleas is affirmed in part and
vacated in part, and this cause is remanded to that court to enter judgment reflecting
the jury's verdict on the conspiracy to commit kidnapping charge and to resentence
appellant on all convictions.
Id. at *19. Petitioner did not file a timely appeal. On May 1, 2017, he filed a motion for a
delayed appeal. (ECF No. 7, PAGEID # 403.) On June 21, 2017, the Ohio Supreme Court
denied his motion for a delayed appeal. State v. Lytle, 149 Ohio St.3d 1430 (Ohio 2017).
Pursuant to the remand of the Ohio Court of Appeals, on May 14, 2015, the trial court
issued a new judgment entry of sentence. (ECF No. 7, PAGEID # 258-261.) Petitioner filed a
timely appeal. The state appellate court summarized the facts as follows:
{¶ 1} Defendant-appellant, Daniel W. Lytle, appeals the May 14, 2015 judgment
of the Franklin County Court of Common Pleas resentencing him following this
court's decision in State v. Lytle, 10th Dist. No. 13AP–866, 2015–Ohio–1133. For
the following reasons, we reverse the judgment of the trial court.
I. Facts and Procedural Background
{¶ 2} Appellant challenges only his conviction for conspiracy to commit
kidnapping. As we extensively reviewed the factual and procedural history of this
case in our prior decision, we shall limit our discussion to only those facts relevant
to the disposition of the present appeal. See id. at ¶ 2–8, 27–50, 83.

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{¶ 3} Appellant's conviction for conspiracy to commit kidnapping was based
largely on the testimony of Wayne VanBlarcume. At trial, VanBlarcume testified
that, on December 18, 2012, he received a call from a friend who asked if he was
interested in making some money. VanBlarcume stated he was interested, and
agreed to the distribution of his phone number. Approximately 15 minutes later,
VanBlarcume received a call from a man who identified himself as “Stan.” (Tr.
Vol.IV, 472.) “Stan” asked if he could come over to talk to VanBlarcume,
VanBlarcume agreed and provided his home address.
{¶ 4} Approximately 15 minutes later, “Stan” arrived at VanBlarcume's house, and
VanBlarcume got into his car. VanBlarcume later identified the caller, “Stan,” both
in a police photo array and at trial, as appellant. Appellant told VanBlarcume that
his wife was trying to frame him for breaking into her house and putting a knife to
her throat. As a result, appellant stated “[h]e'd like to get somebody to mess his wife
up and cut her face up with a box cutter * * * [s]o she could look in the mirror and
think of him every time she looks in the mirror.” (Tr. Vol.IV, 474.) Appellant asked
VanBlarcume to find someone to complete this task for him. Appellant then drove
VanBlarcume to his wife's house, pointed out which house she lived in, and then
returned VanBlarcume to his home. VanBlarcume testified he had no intention of
helping appellant and did not agree to help appellant. VanBlarcume told appellant
“I'd see what I could do, and that was it.” (Tr. Vol.IV, 478.)
{¶ 5} After appellant departed, VanBlarcume contacted law enforcement, but did
not receive a response. On December 30, 2012, VanBlarcume received a call from
appellant, who asked if VanBlarcume knew someone named Jimmy Lee.
VanBlarcume said that he did know him, but that he was in prison. On January 2,
2013, after seeing a local news story describing appellant's arrest, VanBlarcume
again contacted law enforcement and identified appellant in a photo array.
VanBlarcume stated at trial that he was “100 percent sure” that appellant was the
man who wanted him to find someone to cut his wife's face. (Tr. Vol.IV, 494.)
{¶ 6} At trial, plaintiff-appellee, State of Ohio, also introduced telephone records
corroborating appellant's calls to VanBlarcume on December 18 and 30, 2012.
{¶ 7} On January 9, 2013, a Franklin County Grand Jury indicted appellant,
charging him with eight criminal counts: one count of conspiracy to commit
aggravated murder, in violation of R.C. 2923.01 and 2903.01, a felony of the first
degree; one count of aggravated burglary, in violation of R.C. 2911.11, a felony of
the first degree; one count of aggravated robbery, in violation of R.C. 2911.01, a
felony of the first degree; one count of kidnapping, in violation of R.C. 2905.01, a
felony of the first degree; one count of violating a protection order, in violation of
R.C. 2919.27, a felony of the third degree; one count of abduction, in violation of
R.C. 2905.02, a felony of the third degree; one count of domestic violence, in
violation of R.C. 2919.25, a misdemeanor of the first degree; and one count of
conspiracy to commit kidnapping, in violation of R.C. 2923.01 and 2905.01, a
felony of the second degree. On July 8, 2013, the trial court filed an entry granting
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the state's motion to amend the indictment. The entry reflected the amendment of
the count of conspiracy to commit aggravated murder to a single count of
conspiracy to commit murder, in violation of R.C. 2923.01 and 2903.02, a felony
of the first degree. Additionally, the trial court dismissed the counts of kidnapping
and domestic violence at the state's request.
{¶ 8} Beginning July 8, 2013, the case was tried before a jury. On July 16, 2013,
the jury returned a verdict finding appellant guilty of the remaining charges except
for aggravated robbery. On September 12, 2013, the trial court held a sentencing
hearing and imposed consecutive sentences for the offenses of conspiracy to
commit murder, aggravated burglary, and conspiracy to commit kidnapping, which
were to run concurrently with the sentence for abduction for a total of 27 years
imprisonment. On the same day, the trial court filed a judgment entry reflecting
appellant's conviction and sentence.
{¶ 9} On appeal, this court found that appellant's right to a speedy trial was not
violated and affirmed appellant's convictions for aggravated burglary, abduction,
violation of a protection order, and conspiracy to commit murder. Lytle at ¶ 89.
However, we found that the trial court, in the September 12, 2013 sentencing entry,
erroneously identified the conspiracy to commit kidnapping verdict as kidnapping
proper, which required us to vacate the conviction and remand to the trial court for
the limited purpose of issuing a corrected judgment entry before undertaking a
review of the conviction. Id. at ¶ 7–10.
{¶ 10} On May 4, 2015, the trial court held a resentencing hearing, imposing a
sentence identical to the one imposed on September 12, 2013. On May 14, 2015,
the trial court filed a judgment entry reflecting appellant's resentencing and
properly identifying appellant's conviction for conspiracy to commit kidnapping.
II. Assignments of Error
{¶ 11} Appellant appeals and assigns the following two assignments of error for
our review:
[I.] Appellant was convicted of conspiracy to commit kidnapping in the absence of
evidence sufficient to support a finding of guilty in violation of his right to due
process as guaranteed by the Fifth and Fourteenth [A]mendments to the United
States Constitution and comparable provisions of the Ohio Constitution.
[II.] Appellant's conviction for conspiracy to commit kidnapping was against the
manifest weight of the evidence in violation of his right to due process as
guaranteed by the Ohio Constitution.
State v. Lytle, 10th Dist. No. 15AP-556, 2016 WL 1461773, at *1-3 (Ohio Ct. App. April 14,
2016). On April 14, 2016, the appellate court sustained Petitioner’s first assignment of error,
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reversing the judgment of the trial court, and again remanding the case to the trial court for resentencing. Id. On September 14, 2016, the Ohio Supreme Court declined to accept jurisdiction
of the appeal. State v. Lytle, 146 Ohio St.3d 1503 (Ohio 2016).
Pursuant to the remand of the state appellate court, on December 19, 2016, the trial court
again issued a new judgment entry of sentence. (ECF No. 7, PAGEID # 375-79.) Through new
counsel, Petitioner filed a timely appeal. (PAGEID # 391.) However, the appellate court
subsequently granted his motion to dismiss that appeal. (PAGEID # 393, 399.)
On August 16, 2017, Petitioner filed a delayed application to reopen the appeal pursuant
to Ohio Appellate Rule 26(B). On October 13, 2017, the appellate court denied the Rule 26(B)
application as untimely. (PAGEID # 503.) Petitioner did not file an appeal to the Ohio Supreme
Court.
On May 31, 2018, Petitioner filed this Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He asserts that he was denied his right to a speedy trial under Ohio law and in
violation of Barker v. Wingo, 407 U.S. 514 (1972) (claim one); that the evidence is
constitutionally insufficient to sustain his convictions (claim two); that he was denied the
effective assistance of appellate counsel because his attorney failed to argue on appeal that the
trial court lacked subject-matter jurisdiction to permit the amendment of the Indictment (claim
three); and that he was denied the effective assistance of appellate counsel, because his attorney
failed to assert on direct appeal that he was convicted in violation of the Confrontation Clause
(claim four). It is the position of the Respondent that Petitioner’s claims are waived or without
merit.

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II.
A.

Analysis

State-Law Speedy Trial Claim
In claim one, Petitioner asserts that he was denied his right to a speedy trial. To the

extent that he raises an issue regarding the alleged violation of state law, or state speedy trial
statutes, it does not provide him a basis for relief. A federal court may review a state prisoner's
habeas petition only on the grounds that the challenged confinement is in violation of the
Constitution, laws or treaties of the United States. 18 U.S.C. § 2254(a). A federal court may not
issue a writ of habeas corpus “on the basis of a perceived error of state law.” Pulley v. Harris,
465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas
court does not function as an additional state appellate court reviewing state courts' decisions on
state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). “ ‘[F]ederal courts
must defer to a state court's interpretation of its own rules of evidence and procedure’ ” in
considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th
Cir. 1985)). Only where the error resulted in the denial of fundamental fairness will habeas relief
be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Such circumstances do not
exist here.
B.

Federal Speedy Trial Claim
1.

Fair Presentment

Petitioner also asserts in claim one that he was denied his federal constitutional right to a
speedy trial. Respondent argues that Petitioner has waived this federal claim by failing to
present it to the state appellate court. Return of Writ (ECF No. 8, PAGEID # 1587.) The
undersigned disagrees.

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In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly
present the substance of each constitutional claim to the state courts as a federal constitutional
claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971).
Although the fair presentment requirement is a rule of comity, not jurisdiction, see Castille v.
Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), it is
rooted in principles of comity and federalism designed to allow state courts the opportunity to
correct the State’s alleged violation of a federal constitutional right that threatens to invalidate a
state criminal judgment.
In the United State Court of Appeals for the Sixth Circuit, a petitioner can satisfy the fair
presentment requirement in any one of four ways: (1) reliance upon federal cases employing
constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis;
(3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a
denial of a specific constitutional right; or (4) alleging facts well within the mainstream of
constitutional law. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Further, general
allegations of the denial of a constitutional right, such as the right to a fair trial or to due process,
are insufficient to satisfy the “fair presentment” requirement. Id.
Here, Petitioner argued in the Ohio Court of Appeals not only that the trial court violated
Ohio’s speedy trial statutes, but that he was denied his right to a speedy trial under the Sixth
Amendment. He also referred to various federal cases in support of this claim, such as Klopfer v.
North Carolina, 386 U.S. 213 (1967); Barker v. Wingo, 407 U.S. 514 (1969); Smith v. Hooey,
393 U.S. 374 (1969); United States v. Ewell, 383 U.S. 116 (1966); and United States v. Marion,
404 U.S. 307 (1971). (ECF No. 7, PAGEID # 135-36.) In addition, the state appellate court
addressed this federal claim. See Lytle, 2015 WL1372810, at *4. Under these circumstances, the

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undersigned finds that Petitioner has not waived his federal speedy trial claim for review in these
proceedings by failing to present it to the state appellate court.
However, as explained below, the undersigned finds that Plaintiff’s claims are barred
from review under the doctrine of procedural default.
2.

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
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, 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
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. Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987).

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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 United States Supreme Court explained 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, the Court must determine 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
the petitioner did not comply with a state procedural rule and that the rule was an adequate and
independent state ground, then the petitioner must demonstrate cause for his failure 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, 99 (6th Cir.), cert. denied sub nom. Leroy v.
Morris, 474 U.S. 831 (1985).

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In light of the fourth part of the Maupin analysis, in order to establish cause, 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.” Murray, 477 U.S. at
479. Such is the case 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.), cert. denied, 546 U.S. 1017 (2005). Or, if the claim is procedurally defaulted, petitioner
must be able to “satisfy the ‘cause and prejudice’ standard with respect to the ineffectiveassistance claim itself.” Edwards, 529 U.S. at 450–51. The Supreme Court explained the
importance of this requirement as follows:
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 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
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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)).
Id. 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, 477 U.S. at 495–96), cert. denied, 135 S. Ct. 1545 (2015).
a. Application to Claims One and Two
Petitioner asserted in the Ohio Court of Appeals that he had been denied his right to a
speedy trial and that the evidence is constitutionally insufficient to sustain his convictions;
however, he failed thereafter to file a timely appeal to the Ohio Supreme Court, and the Ohio
Supreme Court denied his motion for a delayed appeal. Consequently, Petitioner has
procedurally defaulted claims one and two for review in these proceedings. See Watkins v.
Warden, Madison Correctional Institution, No. 2:18-cv-590, 2018 WL 3142854, at *6 (S.D.
Ohio June 26, 2018) (citations omitted); Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).
b. Application to Claims Three and Four
In claims three and four, Petitioner asserts that he was denied the effective assistance of
appellate counsel. Petitioner likewise has procedurally defaulted these claims by failing to file a
timely Rule 26(B) application. The state appellate court denied his delayed Rule 26(B)
application for failure to establish good cause for the untimely filing, reasoning as follows:
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App.R. 26(B)(1) provides that “[a]n application for reopening shall be filed in the
court of appeals where the appeal was decided within ninety days from
journalization of the appellate judgment unless the applicant shows good cause for
filing at a later time.” Journalization of the underlying appellate judgment in this
case occurred on April 14, 2016 for Lytle II, over one year before appellant filed
his application for delayed reopening.
. . . . Appellant [] claims in his application that good cause exists for his failure to
timely file his application under App.R. 26(B) and provides his own affidavit in
support of such claim. In his affidavit, appellant states that, following his first
appeal in Lytle I, his former counsel “incorrectly led me to believe that he could
again challenge the convictions and sentence, those initially affirmed by this Court
on the first appeal, through subsequent appeals.” (Appellant’s Aff. at ¶ 11.)
Appellant further claims that, on March 17, 2017, following his resentencing on
remand from Lytle II, he learned through correspondence with new counsel
appointed to represent him on his third appeal that he would be unable to further
appeal his previously affirmed convictions. However, in the same correspondence,
appointed counsel for appellant’s third appeal informed him that he could file an
application for reopening under App.R. 26(B).
Here, regardless of whether or not appellant was aware prior to being informed by
appointed counsel on March 17, 2017 of the potential for relief through an
application for reopening, appellant’s lack of legal knowledge does not
automatically excuse him from the filing requirements of App.R. 26(B). State v.
Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, ¶ 10, quoting State v. Reddick, 72
Ohio St.3d 88, 91 (1995) (“ ‘Lack of effort or imagination, and ignorance of the
law * * * do not automatically establish good cause for failure to seek timely relief
under App.R. 26(B).”); State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, ¶ 9,
quoting State v. Winstead, 74 Ohio St.3d 277, 278 (1996) (“The 90-day requirement
in [App.R. 26(B)] is ‘applicable to all appellants.’ ”); State v. Richardson, 8th Dist.
No. 87886, 2008-Ohio-2360, ¶ 2. Even if we were to consider the March 17, 2017
correspondence in place of the date of the journalization of the underlying
judgments for purposes of complying with App.R. 26(B), appellant nevertheless
fails to explain the nearly five-month delay between March 17, 2017 and the filing
of his delayed application for reopening on August 16, 2017. As a result, we
conclude appellant has failed to demonstrate good cause as required by App.R.
26(B)(2)(b) for his untimely filing. Therefore, we need not consider appellant’s
arguments regarding ineffective assistance of appellate counsel.
(ECF No. 7, PAGEID # 506-07.) Thus, Petitioner has likewise procedurally defaulted his claims
of the denial of the effective assistance of appellate counsel. See Scuba v. Brigano, 527 F.3d
479, 488-89 (6th Cir. 2007). Moreover, Petitioner did not file an appeal of the appellate court’s
decision to the Ohio Supreme Court. He may now no longer do so, as Ohio does not permit
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delayed appeals in Rule 26(B) proceedings. Ohio Supreme Court Rule of Practice 7.01(A)(4)(c).
Petitioner has consequently additionally procedurally defaulted his claim of the denial of the
effective assistance of appellate counsel on this basis. See Johnson v. Turner, 2:14-cv-01908,
2016 WL 6963177, at * (S.D. Ohio Nov. 29, 2016). The state courts were unable to enforce this
procedural rule due to the nature of Petitioner’s procedural default.
c. Cause and Prejudice
Petitioner may still obtain review of these claims on the merits, if he establishes cause for
his procedural defaults, as well as actual prejudice from the alleged constitutional violations. As
cause for his procedural defaults, Petitioner asserts the denial of the effective assistance of
appellate counsel based on his attorney’s failure to file a timely appeal in the Ohio Supreme
Court or in Rule 26(B) proceedings.1 He also asserts that negligent mailing practices in the
Pickaway Correctional Institution prevented his timely filing. (See Petitioner’s Memorandum in
Opposition to Respondent’s Answer/Return of Writ to Dismiss Federal Habeas Corpus, ECF No.
13, PAGEID # 1643-46.) Petitioner’s arguments are not persuasive.
The right to counsel extends to the first appeal of right and no further. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987). Under the rule of Coleman v. Thompson, 501 U.S. 722
(1991), attorney error in proceedings wherein there is no right to counsel—such as in the filing
of a motion for a discretionary appeal with the Ohio Supreme Court or in Rule 26(B)
proceedings—cannot serve as cause for a procedural default. See McClain v. Kelly, 631 F.
App’x 422, 436-37 (6th Cir. 2015) (citations omitted). In addition, because Petitioner’s reliance

1

Petitioner stated in his motion for a delayed appeal to the Ohio Supreme Court that his retained
counsel had agreed to file an appeal to the Ohio Supreme Court, but did not do so and never
advised him of the 45 day time limit for filing an appeal. (ECF No. 7, PAGEID # 405.)
Petitioner represents that he learned, on March 17, 2017, when speaking with the public
defender, that he could not longer appeal his claims. (See PAGEID # 436-38.)
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upon alleged negligent mailing practices lacks record support, he has failed to establish cause for
his procedural defaults.
d. Actual Innocence
Finally, Plaintiff has failed to establish that his claims may avoid the procedural bar
under the actual innocence exception.
The United States Supreme Court has held that a claim of actual innocence may be raised
“to avoid a procedural bar to the consideration of the merits of [the petitioner’s] constitutional
claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a showing of cause for the
procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible
showing of actual innocence was sufficient to enable a court to reach the merits of an otherwise
procedurally-barred habeas petition. Schlup, 513 U.S. at 317. The actual innocence claim in
Schlup is “‘not itself a constitutional claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’”
Id. at 315 (quoting Herrera v. Collins, 506 U. S. 390, 404 (1993)).
The actual innocence exception allows a petitioner to pursue his constitutional claims if it
is “more likely than not” that new evidence—not previously presented at trial—would allow no
reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 (6th
Cir. 2005). The Sixth Circuit has offered the following explanation of the actual innocence
exception:
The United States Supreme Court has held that if a habeas petitioner “presents
evidence of innocence so strong that a court cannot have confidence in the outcome
of the trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error, the petitioner should be allowed to pass through the gateway
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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).
Because Petitioner fails to satisfy these standards, the actual innocence exception does not
operate to save his otherwise procedurally defaulted claims.
III.

Disposition

For the reasons set forth above, it is RECOMMENDED 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).
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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/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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