Huber, Jr v. Warden, Chilicothe Correctional Institution

Filing 25

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON PETITIONER'S MOTION FOR SUMMARY JUDGMENT - It is again respectfully recommended that Huber's Motion for Summary Judgment be denied. Objections to R&R due by 9/9/2013. Signed by Magistrate Judge Michael R Merz on 8/23/2013. (kpf1)

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

WARDEN, Chillicothe Correctional
Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
PETITIONER’S MOTION FOR SUMMARY JUDGMENT

This case is before the Court on Petitioner=s Objections (Doc. No. 23) to the Magistrate
Judge’s Report and Recommendations (the “Report,” Doc. No. 21) on Petitioner’s Motion for
Summary Judgment (Doc. No. 15). Judge Rose has recommitted the summary judgment motion
for reconsideration in light of the Objections (Doc. No. 24).
A major difficulty with Huber’s Objections is that he has cut-and-pasted large portions of
the Report and Recommendations without following the usual typographical customs about
showing when something is copied from somewhere else. For example, the entire paragraph on
PageID 1291 which begins “The State had argued the 26(A) application was untimely . . . .” is
copied verbatim from Report at PageID 1278-79. Readers of the Objections must take care to
distinguish what Mr. Huber has composed from what he has copied.
The Report recommended dismissing Grounds for Relief One and Two as procedurally
defaulted because the Second District Court of Appeals read Huber’s untimely 26(A) application

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as a first 26(B) application and then denied his correctly-labeled 26(B) application as a second or
successive application not permitted by Ohio law. In his Objections Huber asserts at least four
times1 that the court of appeals was very wrong to do that because, he says, he did not raise an
ineffective assistance of appellate counsel claim in the 26(A) application. But his assertion is
refuted by the plain language of the second ground in the 26(A) application which reads “2. The
Appellate counsel erred . . . .” (Original Return of Writ, Doc. No. 4-2, PageID 229, quoted at
Report, Doc. No. 21, PageID 1278.) No amount of denying it on Huber’s part makes that claim
anything other than a claim his appellate attorney erred by not raising a claim relating to
peremptory challenges. The court of appeals read Huber’s 26(A) application for its substance,
rather than its form, and considered his claim of ineffective assistance of appellate counsel made
in the 26(A) on the merits. It then refused to give him a second bite at the apple in his 26(B)
Application.
Huber claims that his 26(A) application was not untimely. The clerk’s docket for this
case (Doc. No. 19-2, PageID 974) shows that the court of appeals decision occurred on April 3,
2009.

Ten days later would have been April 13, 2009.

Huber filed nothing relevant to

reconsideration until April 28, 2009, when he asked for an extension of time to file for
reconsideration. That motion was not decided until May 20, 2009, when he was granted thirty
days. He then filed his 26(A) application on June 10, 2009, within the thirty days. Thus his
initial application for extension of time was filed fifteen days after the time for filing for
reconsideration expired and the court of appeals expressly found the 26(A) application was
1

“Petitioner did not raise, nor attempt to raise, a federal constitutional claim of ineffective assistance of appellate
counsel, as defined by the statutory requirements of App. R. 26(B)” PageID 1295; “[N]or is there any indication to
the court of appeals that Petitioner was attempting to raise an ineffective assistance of appellate counsel claim”
PageID 1296; “Petitioner was not attempting to raise an ineffective assistance of appellate counsel claim in his
timely motion for reconsideration” PageID 1298; “Petitioner’s 26(A) does not, on the face, present an ineffective
assistance of appellate counsel claim sufficient enough to warrant the court of appeals ‘misconstruing’ his timely
26(A) as a 26(B)” PageID 1301.

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untimely. 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.)
The Report stated that Huber had not argued the underlying merits of his First and
Second Grounds for Relief, the grounds found to be procedurally defaulted. Huber objects that
he did make a merits argument in the Memorandum of Law in Support of Claims for Relief
which is attached to the Motion. (Doc. No. 15-1, PageID 877-93.)
The two Grounds for Relief on which Huber seeks summary judgment in his favor are as
follows:
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
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.
(Amended Petition, Doc. No. 16-1, quoted at Report, Doc. No. 23, PageID 1275-76.)
The Memorandum in Support argues at PageID 891 that Huber was successful in a
parallel appeal2 that there was insufficient evidence that he possessed between five and fifty
times the bulk amount of fentanyl. He claims that since he was successful on that claim in the
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Huber was indicted for all of the drugs found in a suitcase he was carrying when arrested. The charges relating to
fentanyl were not properly charged and were severed, reindicted and tried separately, resulting in separate appeals to
the Second District.

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other appeal, he would have been successful on the same claim in the conviction at issue in this
case.

While that is an argument “on the merits,” it is very summary and completely

unconvincing. The failure of the State to prove an element at one trial with respect to one drug
does not establish that it failed to do so with respect to other drugs at another trial. And there is
no argument at all on the merits of the double jeopardy claim.3 Thus if the Court were to bypass
Huber’s procedural default and reach the merits, it could hardly find Huber was entitled to
summary judgment on these first two claims.
Accordingly, it is again respectfully recommended that Huber’s Motion for Summary
Judgment be denied.
August 23, 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
3

Huber’s double jeopardy argument made in the parallel case of Huber v. Warden, Case No. 3:13-cv-55, was
rejected by Judge Rice of this Court on August 22, 2013.

4

F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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