Huber, Jr v. Warden, Chilicothe Correctional Institution

Filing 21

REPORT AND RECOMMENDATIONS ON MOTION FOR - SUMMARY JUDGMENT re 15 MOTION for Summary Judgment filed by Joseph W Huber, Jr. Huber has not attempted to show cause and prejudice for his noncompliance with the Ohio rules enforced against him nor has h e attempted a showing of actual innocence. Accordingly, his first two Grounds for Relief are barred by procedural default and should be dismissed with prejudice on that basis. Objections to R&R due by 8/22/2013. Signed by Judge Thomas M Rose on 8/5/2013. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOSEPH W. HUBER, JR.,
Petitioner,

:

- vs -

Case No. 3:11-cv-008
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

NORM ROBINSON, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION FOR
SUMMARY JUDGMENT

This reopened habeas corpus case is before the Court on the Amended Petition (Doc. No.
16-1), Petitioner’s Motion for Summary Judgment (Doc. No. 15), and Respondent’s Return to
the Amended Petition and Opposition to the Motion for Summary Judgment (Doc. No. 19).
Huber seeks relief from the judgment of conviction and sentence in Clark County
Common Pleas Case No. 06-CR-509 (“Huber I”) and pleads the following Grounds for Relief:
Ground One: Appellate counsel was ineffective for failing to
raise an allied offense/Double Jeopardy claim in violation of
Petitioner’s 6th, 5th, and 14th Amendment protections.
Supporting facts: Petitioner was found guilty by a jury of (4)
counts of drug abuse, three of which were allied offenses of similar
import. Appellate counsel failed to raise this issue on direct
appeal, thereby violating Petitioner’s 6th, 5th, and 14th Amendment
protections.
Ground Two: Appellate counsel was ineffective for failing to
raise an insufficiency of evidence claim in regards to the State
using “pill count” to enhance the degree of the offense, in violation

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of R.C. 2925.03(D) and the 6th and 14th Amendments of the U.S.
Constitution.
Supporting facts: The State used “pill count” instead of the
statutory mandates of R.C. 2925.03(D) when using the “bulk
amount” to enhance the degree of the offense.
Ground Three: The trial court erred by imposing the statutory
maximum sentence when the evidence was insufficient to sustain a
conviction for drug abuse over the “bulk amount,” thus resulting in
a violation of R.C. 2925.03(D) and the 14th Amendment.
Supporting facts: At the September 23, 2010, sentencing hearing
Petitioner objected to the trial court imposition of the statutory
maximum sentence for drug abuse, without the State sufficiently
establishing “bulk amount” in accordance with the statutory
mandates of R.C. 2925.03(D).
Ground Four: The trial court violated Petitioner’s Double
Jeopardy protections when imposing sentence on counts of the
indictment that were allied offenses of similar import in violation
of R.C. 2941.25 and the 5th and 14th Amendments.
Supporting facts: At the September 23, 2010, sentencing hearing
Petitioner objected to the imposition of sentences on cts [sic] of the
indictment that were allied offenses of similar import and should
have been merged.
(Amended Petition, Doc. No. 16-1.)

Applicability of Summary Judgment Practice

Petitioner asserts this case is amenable to summary judgment (Motion for Summary
Judgment, Doc. No. 153). He begins by citing Walker v. Johnston, 312 U.S. 275 (1941), where
the Supreme Court wrote:
[I]f, upon the face of the petition, it appears that the party is not
entitled to the writ, the court may refuse to issue it. Since the
allegations of such petitions are often inconclusive, the practice has
grown up of issuing an order to show cause, which the respondent
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may answer. By this procedure the facts on which the opposing
parties rely may be exhibited, and the court may find that no issue
of fact is involved. In this way useless grant of the writ with
consequent production of the prisoner and of witnesses may be
avoided where from undisputed facts or from incontrovertible
facts, such as those recited in a court record, it appears, as matter
of law, no cause for granting the writ exists. On the other hand, on
the facts admitted, it may appear that, as matter of law, the prisoner
is entitled to the writ and to a discharge.

Id. at 284. Although Walker was decided under a prior statute replaced by the codification of
Title 28 in 1948 and by the Rules Governing § 2254 Cases, the Supreme Court has held the Civil
Rules may be used to supplement those laws when there is no conflict. Mayle v. Felix, 545 U.S.
644 (2005); Day v. McDonough, 547 U.S. 198 (2006); Gonzalez v. Crosby, 545 U.S. 524 (2005);
Banks v. Dretke, 540 U.S. 668 (2004); Calderon v. Ashmus, 523 U.S. 740 (1998); Bousley v.
United States, 523 U.S. 614 (1998). The Court agrees with Petitioner that there is no good
reason not to include Fed. R. Civ. P. 56 among the Civil Rules used in adjudicating habeas
corpus cases in circumstances where there is no disputed issue of material fact and one party or
the other is entitled to judgment as a matter of law.

Procedural History

Huber was indicted by a Clark County grand jury in 2006 on six counts of drug abuse in
violation of Ohio Revised Code § 2925.11(A). The case went to trial on only four counts, the
charges relating to fentanyl having been dismissed before a jury was chosen. (See Supplemental
Report and Recommendations, Doc. No. 19, Case No. 3:13-cv-55, PageID 719-21.) The jury
convicted Huber on the remaining four counts and he was sentenced to an aggregate term of
twenty-one years. He appealed, represented by new counsel. The Second District Court of
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Appeals affirmed. State v. Huber, Case No. 07-CA-88, 2009 Ohio 1636, 2009 Ohio LEXIS 1347
(2nd Dist. Apr. 3, 2009). The Ohio Supreme Court declined review.
On June 10, 2009, Huber filed a motion for reconsideration under Ohio R. App. P. 26(A)
raising the following issues:
1. The trial counsel erred when the Defendant was denied the right
of jury trial by the denial of peremptory challenges and/or cause
which prejudice the Defendant at trial.
2. The Appellate counsel erred when the Defendant was denied the
right of appeal by the denial of challenges of cause and/peremptory
challenges by counsel litigating the issues together which prejudice
the Defendant a fair trial.

(Original Return of Writ, Doc. No. 4-2, PageID 229.)
Nine days later and before his Rule 26(A) Application had been decided, Huber filed an
Application for Reopening under Ohio R. App. P. 26(B) raising the following claims of
ineffective assistance of appellate counsel:
1. Appellant was prejudiced by appellate counsel’s failure to raise
an allied offense of similar import when dealing the drug
possession.
2. Appellant was prejudiced by counsel’s allowing the State of
Ohio to use pill count when statutes calls for weight or unit doses.

(Original Return of Writ, Doc. No. 4-2, PageID 248.)
The State had argued the 26(A) Application was untimely. The Court of Appeals elided
that question and found instead that the “true nature” of the 26(A) Application was as an
application for reopening under Ohio R. App. P. 26(B) because “[t]he sole claim in Huber’s
application is ineffective assistance of appellate counsel.” State v. Huber, Case No. 07-CA-88,
(Ohio App. 2nd Dist. Jul. 29, 2009)(unreported, copy of slip op. at Doc. No. 4-2, PageID 286.)

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The court of appeals only decided the second issue presented, the ineffective assistance of
appellate counsel claim related to peremptory challenges and concluded it did not raise a
colorable claim of ineffective assistance of appellate counsel. Id. at PageID 290.
On October 27, 2009, the Court of Appeals decided what Huber had labeled a 26(B)
Application. It expressly found that the 26(A) Application, construed as Huber labeled it, was
untimely, but noted that it had treated that application, to the extent it raised a claim of
ineffective assistance of appellate counsel, as a timely application to reopen under Rule 26(B).1
But it therefore treated what Huber had labeled a 26(B) application as his second application of
that nature and denied it because (1) there is no provision in Ohio law for filing successive
applications for reopening and (2) res judicata barred considering the merits of these claims
because they could have been raised in the 26(A) proceeding. State v. Huber, Case No. 07-CA88, (Ohio App. 2nd Dist. Jul. 29, 2009)(unreported, copy of slip op. at Doc. No. 4-2, PageID 29192.) The Ohio Supreme court declined review (State v. Huber, Case No. 2009-2040, Entry of
January 27, 2010, copy at Original Return of Writ, Doc. No. 4-2, PageID 310.)
The Warden’s Return to the Amended Petition recites numerous additional attempts by
Huber after January 27, 2010, to obtain relief from the Ohio courts, some of which remain
pending as of the date of this Report (Doc. No. 19, PageID 926-37). The State raises no lack of
exhaustion defense as to these matters. Id. at PageID 937-40. Nor has Huber sought any stay of
this Court’s judgment pending exhaustion.

Indeed, by moving for summary judgment, he

effectively asserts the case is ripe for decision.

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Motions for reconsideration must be filed within ten days of the appellate judgment, but motions to reopen to raise
claims of ineffective assistance of appellate counsel have a ninety-day limit.

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Analysis

Ground One: Ineffective Assistance of Appellate Counsel:
Offenses/Double Jeopardy Issue

Failure to Argue Allied

Ground Two: Ineffective Assistance of Appellate Counsel: Failure to Raise an
Insufficiency of the Evidence Claim Regarding Use of “Pill Count” to Enhance the Degree
of the Offense

In his First Ground for Relief, Huber claims he received ineffective assistance of
appellate counsel when his attorney did not raise and argue a claim that three of the four counts
of conviction were allied offenses of similar import required to be merged for sentencing
purposes under Ohio Revised Code § 2941.25 or that sentencing him on each of them would
violate the Fifth Amendment protection against Double Jeopardy.
In his Second Ground for Relief, Huber claims he received ineffective assistance of
appellate counsel when his appellate attorney did not raise an insufficiency of the evidence claim
regarding the State’s use of “pill count” to enhance the degree of the offense.
Petitioner does not explain or argue the merits of these Grounds for Relief in the Petition,
the Amended Petition, or the Motion for Summary Judgment.2

Respondent asserts these

Grounds for Relief are barred by Huber’s procedural default in presenting them to the Ohio
courts, noting that they were presented for the first time in Huber’s 26(B) Application and
dismissed on res judicata grounds by the Court of Appeals as detailed above. Huber responds at
length to the procedural default analysis in his Motion for Summary Judgment.
The procedural default defense in habeas corpus is described by the Supreme Court as

2

In the Motion for Summary Judgment, Huber refers to a “Memorandum of Law in Support of Claims with attached
Exhibits.” (Doc. No. 15, PageID 876.) No such document is on file in this case.

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follows:
In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an
adequate and independent state procedural rule,
federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir.), cert. denied sub nom, Eley v. Hauk,
__ U.S. __, 131 S.Ct. 822 (2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
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.
....
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Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines 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 under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
Ohio has a number of procedural rules which are relevant. First of all, a motion for
reconsideration of an appellate decision must be filed within ten days of that decision. Ohio R.
App. P. 26(A)(1)(A). Second, the manner of raising a claim of ineffective assistance of appellate
counsel is by an application for reopening under Ohio R. App. P. 26(B). Third, the deadline for
filing a 26(B) application is ninety days from the appellate judgment. Id. at Rule 26(B)(1).
Fourth, Ohio law does not provide for successive Rule 26(B) motions. State v. Cheren, 73 Ohio
St. 3d 137 (1995); State v. Peeples, 73 Ohio St. 3d 149 (1995). Fifth, Ohio’s criminal res
judicata doctrine applies to App. R. 26(B). State v. Richardson, 74 Ohio St. 3d 235 (1996).
These rules were actually enforced against Mr. Huber. His Rule 26(A) application for
reconsideration was untimely, i.e., filed more than ten days after the appellate judgment.
Because of that, the court of appeals ignored his first proposed assignment of error, to wit, that
he received ineffective assistance of trial counsel. However, because the text of Huber’s Rule
26(A) application actually raised a claim of ineffective assistance of appellate counsel, as a
matter of grace the court of appeals did not summarily deny the 26(A) application, but construed
it as a 26(B) application and decided the ineffective assistance of appellate counsel claim on the
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merits, actually spending four pages analyzing it. State v. Huber, Case No. 07-CA-88, (Ohio
App. 2nd Dist. Jul. 29, 2009)(unreported, copy of slip op. at Doc. No. 4-2, PageID 286-89.)
Mr. Huber’s second-in-time post-judgment motion to the court of appeals, which he
labeled as being under Rule 26(B), raised only ineffective assistance of appellate counsel claims
which are now pled as his First and Second Grounds for Relief. The court of appeals enforced
against him both the successive motion rule and the res judicata rule. State v. Huber, Case No.
07-CA-88, (Ohio App. 2nd Dist. Oct. 27, 2009)(unreported, copy of slip op. at Doc. No. 4-2,
PageID 291-93.)
Huber notes that Ohio App. R. 26(B) “clearly directs a criminal defendant, in Ohio, that
an App. R. 26(B) application for reopening is the appropriate procedural mechanism for properly
raising [ineffective assistance of appellate counsel] claims in a timely manner.” (Motion for
Summary Judgment, Doc. No. 15, PageID 884.) That is correct. What he does not mention is
that Ohio law does not permit raising ineffective assistance of appellate counsel claims in an
untimely Rule 26(A) application, which is what Huber did.
Huber asserts that “[t]he Ohio Supreme Court did not intend for the application of res
judicata to timely filed App. R. 26(B) [applications] because one issue that was not resolved
until App. R. 26 was amended was the timeliness consideration.” Id. at 885. That is a complete
non sequitur. It is true that State v. Murnahan, 63 Ohio St. 3d 60 (1992), did not set a time limit
for raising ineffective assistance of appellate counsel claims in the courts of appeals. Instead, it
instructed its Rules Advisory Committee to draft a rule codifying the Murnahan decision; the
Committee followed orders and the Ohio Supreme Court adopted 26(B) to become effective July
1, 1993. Huber is aware of this because he quotes the relevant portion of the Murnahan decision
at PageID 884. But timeliness and res judicata are different doctrines. No Ohio rule of law,

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codified or case law, provides that a defendant may file as many Rule 26(B) applications as he
wishes so long as they are all within ninety days of judgment.
Huber expresses mystification at why the court of appeals construed his 26(A)
application as an application for reopening. Id. at PageID 885. But the reason is patent on the
face of the decision: construed the way Huber labeled it -- as a 26(A) application -- it was
untimely. The court of appeals could have summarily dismissed it as the State urged it to do.
Instead, it gave Huber a hearing on the merits of his ineffective assistance of appellate counsel
claim which was inappropriately included in a 26(A) application, but was timely when construed
as a 26(B) application. There is no reason stated by Huber or apparent on the face of the record
why the two ineffective assistance of appellate counsel claims actually made on July 19, 2009,
and pled here as Grounds One and Two could not have been pled nine days earlier.
Huber asserts the court of appeals abused its discretion in applying res judicata to his
Rule 26(B) application, citing State v. Davis, 119 Ohio St. 3d 422 (2008). In Davis the Hamilton
County Court of Appeals held Davis’ ineffective assistance of appellate counsel claim made in a
26(B) application was barred by res judicata because he could have raised the same claim on
direct appeal to the Ohio Supreme Court. The Ohio Supreme Court reversed, holding that
application to it for discretionary appeal does not create a res judicata bar to a merit ruling on an
ineffective assistance of appellate counsel claim made in a 26(B) application. But that is not the
res judicata bar the Second District Court of Appeals applied here. In this case, the bar arose
from Huber’s having filed a claim of ineffective assistance of appellate counsel in his 26(A)
application. Davis does not speak to that situation.
As Huber acknowledges (Motion, Doc. No. 15, PageID 888), Ohio’s res judicata
doctrine enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), is an adequate and independent

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state ground. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337
(6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486,
521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van
Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001).
Huber asserts that the court of appeals’ treating his 26(A) motion for reconsideration as a
first 26(B) application for reopening is not a practice “firmly established and regularly followed”
by the Ohio courts, and thus does not meet the “adequate and independent” prong of the Maupin
test. But Huber has not shown that proceeding in that manner was in any way arbitrary and
capricious on the part of the court of appeals. The ten-day limit on motions for reconsideration is
well established in Ohio and has been in place since before Appellate Rule 26(B) was adopted to
deal with the problem discussed in Murnahan of having trial courts pass on ineffective assistance
of appellate counsel claims made in an Ohio Revised Code § 2953.21 petition. The court of
appeals would have been well within its authority under that Rule to dismiss the 26(A)
application as untimely.

The 26(A) application was not in fact a proper motion for

reconsideration because it asked the court of appeals to consider two new claims, one of
ineffective assistance of trial counsel and one of ineffective assistance of appellate counsel. A
procedural rule need not be followed in every case; it is sufficient if it is applied in the vast
majority of cases. Byrd v. Collins, 209 F. 3d 486, 521 (6th Cir. 2000), citing Dugger v. Adams,
489 U.S. 401, 410 n. 6 (1989). “[A]n occasional act of grace by a state court in excusing or
disregarding a state procedural rule does not render the rule inadequate.” Coleman v. Mitchell
(Storey murder), 268 F.3d 417, 429 (6th Cir. 2001), quoting Amos v. Scott, 61 F.3d 333, 342 (5th
Cir. 1995). “[A] discretionary state procedural rule can serve as an adequate ground to bar
federal habeas review.” Beard v. Kindler, 558 U.S. 53 (2009).

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Huber has not attempted to show cause and prejudice for his noncompliance with the
Ohio rules enforced against him nor has he attempted a showing of actual innocence.
Accordingly, his first two Grounds for Relief are barred by procedural default and should be
dismissed with prejudice on that basis.
August 5, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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