Hauptstueck v. Warden Lebanon Correctional Institution

Filing 2

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Keith Hauptstueck. Rather than appealing within the time allowed by law, Petitioner waited more than a year after the judgment in the court of appeals to attempt an appea l to the Ohio Supreme Court. He has thus procedurally defaulted on his claims and the Petition should therefore be dismissed withprejudice. Because reasonable jurists would not disagree with this conclusion, he should be denied a certificate of appealability and this Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 11/13/2012. Signed by Magistrate Judge Michael R Merz on 10/25/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KEITH HAUPTSTUECK,
:
Petitioner,

Case No. 3:12-cv-356
:

-vs-

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for initial review pursuant to Rule 4 of the
Rules Governing § 2254 Cases which provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the
petitioner.

Petitioner pleads that he was convicted on April 23, 2010, of various sexual offenses
involving a minor in the Montgomery County Common Pleas Court and sentenced to sixty-six
and one-half years imprisonment in Respondent’s custody (Petition, Doc. No. 1, ¶¶ 2-5).
Petitioner appealed to the Second District Court of Appeals which affirmed the conviction. State
v. Hauptstueck, 2011-Ohio-3502, 2011 Ohio App. LEXIS 2972 ((Ohio App. 2nd Dist. July 15,
2011). Petitioner did not appeal to the Ohio Supreme Court within the forty-five days allowed
by law. Instead, more than a year later, on July 25, 2012, he filed a motion for delayed appeal to

the Ohio Supreme Court (Petition, Doc. No. 1, ¶ 11(a)(3), PageID 4). That court denied the
motion without a published decision. State v. Hauptstueck, 2012-Ohio-4381, 974 N.E. 2d 1208
(2012).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
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.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413
(6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97
(6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme
court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S.

838, 848 (1999)(citations omitted).
The 45-day time limit on appeal to Ohio Supreme Court is an adequate and independent
state ground. Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004). Lack of counsel at that stage, lack
of a trial transcript, unfamiliarity with the English language, and short time for legal research in
prison do not establish cause to excuse this default. Bonilla, citing Murray v. Carrier, 477 U.S.
478, 494-95 (1986). Where a state court is entirely silent as to its reasons for denying requested
relief, as when the Ohio Supreme Court denies leave to file a delayed appeal by form entry, the
federal courts assume that the state court would have enforced any applicable procedural bar.
Bonilla at 497, citing Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).
Rather than appealing within the time allowed by law, Petitioner waited more than a year
after the judgment in the court of appeals to attempt an appeal to the Ohio Supreme Court. He
has thus procedurally defaulted on his claims and the Petition should therefore be dismissed with
prejudice. Because reasonable jurists would not disagree with this conclusion, he should be
denied a certificate of appealability and this Court should certify to the Sixth Circuit that any
appeal would be objectively frivolous.
October 25, 2012.
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(e), this period is automatically
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)(B), (C), or (D) and may be extended further by the Court on timely

motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. 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).