Watkins v. Warden, Madison Correctional Institution

Filing 8

OPINION and ORDER adopting and affirming 3 the Report and Recommendation; denying 7 Petitioner's Motion for Expansion of the Record. Signed by Judge Michael H. Watson on 8/16/18. (jk) (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

RYAN WATKINS,
Case No. 2:18-cv-590

Petitioner,

Judge Michael H. Watson
Magistrate Judge Kimberly A. Jolson

V.

WARDEN, MADISON
CORRECTIONAL INSTITUTION,

Respondent.
OPINION AND ORDER

On June 26, 2018, the Magistrate Judge Issued a Report and
Recommendation pursuant to Rule 4 of the Rules Governing Section 2254 Cases
In the United States District Courts recommending that this action be dismissed.
ECF No. 3. Petitioner has filed an Objection to the Magistrate Judge's Report and
Recommendation. ECF No. 6. Pursuant to 28 U.S.C. § 636(b), this Court has
conducted a de novo review. For the reasons that follow. Petitioner's Objection,
ECF No. 6, Is OVERRULED. The Report and Recommendation, ECF No. 3, Is
ADOPTED and AFFIRMED. This action Is hereby DISMISSED. Petitioner's
request for expansion of the record, ECF No. 7, is DENIED. The Court DECLINES
to Issue a certificate of appealablllty.

Petitioner challenges his October 19, 2001, convictions after a jury trial In the
Franklin County Court of Common Pleas on murder, aggravated robbery, felonious
assault, and having a weapon while under disability, with firearm specifications.

He filed a prior habeas corpus petition In October 2003, Watkins v. Hurley, Case

No. 2;03-cv-941

but since that time, the trial court conducted a re-sentencing

hearing for the limited purpose of notifying him of the terms of post release control.

On March 14,2017, the appellate court affirmed that judgment. State v. Watkins,

10th Dist. No. 16AP-581, 2017 WL 1162426, at *1 (Ohio Ct. App. March 14, 2017).
On July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of the
appeal. State v. Watkins, No. 2017-0535, 2017-Ohio-6964,150 Ohio St.3d 1411

(Ohio Sup. Ct. July 26, 2017). In this habeas corpus Petition, Petitioner asserts
that he was denied due process and the right to the effective assistance of counsel

because the trial court failed to define theft in its jury instruction on aggravated
robbery, and trial counsel failed to object. The Magistrate Judge recommended

dismissal of these claims as procedurally defaulted. Petitioner objects to that
recommendation.

Petitioner argues that he has now preserved his claims for review because

the trial court conducted a re-sentencing hearing, issued a new judgment entry of
sentence, and he filed a timely appeal to the Ohio Court of Appeals and Ohio
Supreme Court. However, Petitioner did not raise these current claims in his

appeal from the trial court's re-sentencing hearing. See Watkins, 2017 WL
11624126, at *1

Moreover, he could not have done so, as any claims not relating

* The Court dismissed that action as procedurally defaulted.
^ The state appellate court indicated:
Appellant appeals from his resentencing and assigns the following errors:
[1.] Did the Tenth District Court of Appeals error when it limited Appellants resentencing to Constraints of Sfate v. Fischer, 128 Ohio St.3d 92,2010-OhioCase No. 2:18-cv-590
Page 2 of 6

to the re-sentencing hearing would have been barred under Ohio's doctrine of res

judicata. The appellate court explicitly refused to address Petitioner's argument
that his convictions should have been merged at sentencing on this basis, instead
finding that Watkins should have raised the merger argument in his direct appeal of
his convictions and sentence. See State v. Watkins, 2017 WL 1162426, at *2

("|T]o the extent appellant argues that his convictions should merge for sentencing,
that argument was barred by res judicata. The doctrine of res judicata bars the

assertion of claims against a valid, final judgment of conviction that have been

raised or could have been raised on appeal, (internal citations omitted)). Thus, the
issuance of the trial court's new judgment entry of sentence does not assist the

6238, when appellant request a merger hearing to determine defendant's
conduct of allied offenses.

[2.] Did the trial court error in failing to hold a Merger Hearing at the request
of defendant at his Re sentencing hearing when there was a facial showing
of ail allied offenses as stated in Ohio Supreme Court's Holding in State v.
Rogers, [143 Ohio St.3d 385], 2015Ohio2459.

[3.] if prior to July 11, 2006 a court imposed a sentence pursuant to R.C.
2929.191 and failed to notify the offender pursuant to R.C. 2967.28 does R.C.
2929.191 allow a De novo Review without the State v Fischer constraints to

a limited Re sentencing.
[4.] Did the Tenth District Court of Appeals commit plain error pursuant to

Crim.R. 52(B) when Itfailed to sentence Appellant according to R.C. 2941.25
where there was a facial showing the offenses were allied offenses of similar
import, without making the determination of whether the offenses were in fact
allied offenses of similar import.
(Sic passim.)
State V. Watkins, 2017 WL 1162426, at *1.

Case No. 2:18-cv-590

Page 3 of 6

Petitioner in obtaining review of his claims in these proceedings, and the cases he
refers to do not indicate to the contrary.

Rather, as previously discussed. Petitioner has waived his claims by
failing to file a timely appeal to the Ohio Supreme Court from the appellate
court's decision denying his direct appeal. See Smith v. State of Ohio Dep't

of Rehab, and Corn, 463 F.Sd 426, 431-32 (6*^ Cir. 2006) (citation omitted).
As cause for this default. Petitioner now states that his untimely appeal in

the Ohio Supreme Court was the fault of prison officiais. Objection, EOF No.
6, PAGEID#47.

"[Pjetitioner has the burden of showing cause and prejudice to

overcome a procedural default." Hinkle v. Randle, 271 F.3d 239,245 (6th

Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal
citation omitted)). A petitioner's pro se status, ignorance of the law, or

ignorance of procedural requirements are insufficient bases for excusing a
procedural default. Bonilla, 370 F.3d 496. 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).
The failure of prison officials to timely deliver documents submitted by a
prisoner for mailing prior to the filing deadline may constitute cause for a
procedural default. See Foster v. Warden, 575 F. App'x 650, 654 (6th Cir. 2014)

(citing Henderson v. Palmer, 730 F.3d 554, 559 (6th Cir. 2013)).
Case No. 2:18-cv-590

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Once a prisoner gives his state court filing to prison officials to be
mailed, It Is in their control and he no longer has the ability to affect its

delivery. Id. If the filing would have been timely filed "in the normal
course of events" but is filed late or never reaches the court, the prisoner
has demonstrated cause to excuse the procedural default. Id. (quoting

Maples, 340 F.Sd at 439); see also Ivy, 173 F.3d at 1141 ("[l]t [Is]
incumbent upon the State to ensure that [the prisoner's] motion was
promptly put into the regular stream of outgoing mall.").

Id. However, nothing In the record supports Petitioner's claim that he timely
submitted his documents to prison officials for mailing. It is the Petitioner's burden
to establish cause and prejudice sufficient to overcome a procedural default. HInkle
271 F.3d at 245. Under these circumstances and lacking any evidence to indicate
that the prison mail room did not promptly mail Petitioner's materials, the Court Is
not persuaded that Petitioner has established cause for his procedural default. See

Ellis V. Warden, Ross Corr. Inst, No. 2:17-cv-415, 2018 WL 2183297, at *10 (S.D.

Ohio May 11,201) (citations omitted).
For these reasons, and for the reasons detailed In the Magistrate Judge's
Report and Recommendation, Petitioner's Objection, EOF No. 6, is OVERRULED.
The Report and Recommendation, EOF No. 3, is ADOPTED and AFFIRMED.

This action is hereby DISMISSED. Likewise, Petitioner's request for expansion of
the record, EOF No. 7, is DENIED.

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for
the United States District Courts, the Court now considers whether to issue a

certificate of appealability. See 28 U.S.C. § 2255(d). When a claim has been
denied on the merits, a certificate of appealability may issue only if the petitioner

"has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §
Case No. 2:18'-cv^590
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2253(c)(2). To make a substantial showing of the denial of a constitutional right, a
petitioner must show "that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved In a different manner or
that the Issues presented were 'adequate to deserve encouragement to proceed
further.'" Slack v. McDanlel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893, n. 4 (1983)). When a claim has been denied on procedural
grounds, a certificate of appealablllty may be Issued Ifthe petitioner establishes

that jurists of reason would find It debatable whether the petition states a valid
claim of the denial of a constitutional right, and that jurists of reason would find It
debatable whether the district court was correct In Its procedural ruling. Id.

Upon review of the record, this Court Is not persuaded that reasonable
jurists could debate whether petitioner's claims should have been resolved
differently or that jurists of reason would find It debatable whether this Court was

correct In Its procedural rulings. Therefore, the Court DECLINES to Issue a

certificate of appealablllty.
The Clerk Is DIRECTED to enter final JUDGMENT.
IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:18-cv-590

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