Mays v. Warden Warren Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS ON PETITIONER'S OBJECTIONS, CONSTRUED AS A MOTION FOR RELIEF FROM JUDGMENT - Mays' Objections are without merit. Construed as a motion for relief from judgment under Fed. R. Civ. P. 60(b), they should be denied. B ecause reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 10/15/2013. Signed by Magistrate Judge Michael R Merz on 9/25/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHAMARE H. MAYS,
:
Petitioner,

Case No. 3:13-cv-191
:

District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

-vsWarden, Warren Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON PETITIONER’S
OBJECTIONS, CONSTRUED AS A MOTION FOR RELIEF FROM
JUDGMENT
This habeas corpus action is before the Court on Petitioner’s Objections (Doc. No. 8) to
the Magistrate Judge’s Report and Recommendations (the “Report”) recommending this case be
dismissed with prejudice (Doc. No. 4).
The Report was filed on July 1, 2013, and mailed to Petitioner the same day (7/1/2013
staff note). Ten days later Petitioner caused to be scanned and emailed to the Court a Request
for a sixty-day extension of time (Doc. No. 5). That document bears the notation that it was
scanned and emailed by M. Stickelman on July 11, 2013; the notation is in the standard form for
documents to be scanned and emailed from Warren Correctional Institution using the courtsupplied scanner and sender. On the same day the Magistrate Judge granted that Motion and
caused the Clerk to furnish Petitioner with a copy of the notation order (July 11, 2013, notation
order and staff note).
This notation order made Petitioner’s Objections due September 9, 2013. No objections
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had been received by the Clerk by September 17, 2013, and on that date Judge Rice adopted the
Report and dismissed the case with prejudice (Doc. Nos. 6, 7). Six days later, the Clerk received
and filed Petitioner’s Objections (Doc. No. 8).
The Objections contain a certificate of service that reads “The foregoing was is [sic]
being delivered to prison staff, postage prepaid, this 9th day of September 2013 for ECF
uploading.” Unlike Petitioner’s Motion for Extension of Time, the Objections were not scanned
and uploaded using the prison scanner: they do not bear the same legend as is used for such
documents and they were received in the mail as attested to by the Deputy Clerk who docketed
them. Since it does not take two weeks for mail to travel from Lebanon to Dayton, the Court
strongly doubts the veracity of the Petitioner’s Certificate of Service. Aware of the mailbox rule,
some incarcerated litigants believe that, if they assert they handed the document in, that assertion
must be accepted by the Court. Not so. An assertion of delivery to prison authorities is testable
in the same way any assertion of fact made in court can be tested. In order to curb what appears
to be abuse of the mailbox rule, it is hereby ORDERED that all further certificates of service in
this case be made by declaration or affidavit under penalty of perjury.
Accepting the Certificate of Service at face value, the Court will treat the Objections as a
motion for relief from judgment under Fed. R. Civ. P. 60(b). Fed. R. Civ. P. 60(b) (1) provides
“[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for the following reasons (1) mistake,
inadvertence, surprise, or excusable neglect;” In order to be eligible for relief under 60(b)(1) the
movant must demonstrate the following: (1) The existence of mistake, inadvertence, surprise, or
excusable neglect; (2) that he has a meritorious claim or defense. Marshall v. Monroe & Sons,
Inc., 615 F.2d 1156, 1160 (6th Cir. 1980), citing Ben Sager Chemicals International, Inc. v. E.

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Targosz & Co., 560 F.2d 805, 808 (7th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1366 (10th
Cir. 1970); Central Operating Company v. Utility Workers of America, 491 F.2d 245 (4th Cir.
1973). The Court treats the Objections as a motion under Rule 60(b)(1) by assuming for the sake
of argument that Petitioner’s failure to get the Objections to the Court within the sixty-plus days
allowed him is the result of “excusable neglect.”

Even assuming a finding of excusable

neglect, Petitioner must still show that his Objections have merit. He has failed to do so.
Mays pled three Grounds for Relief:
Ground One: Petitioner was denied the effective assistance of
counsel guaranteed by the Sixth Amendment.
Supporting Facts: At no time prior to trial did Petitioner’s
purported counsel communicate with him about discovery, strategy
or other defense measures. Petitioner vehemently expressed his
dissatisfaction in this regard on record. Petitioner asked to proceed
from an actual innocence standpoint and had counsel considered
this defense, Petition would have been acquitted.
Ground Two: Petitioner was denied his right to have a jury
determine his guilt beyond a reasonable doubt per Blakely v.
Washington, 542 U.S. 296 [(2004)], and the 6th/14th Amendments.
Supporting Facts: Trial court erred in finding Petitioner guilty of
felony murder where the underlying felony was a felonious assault
that directly resulted in death.
Ground Three: Ineffectiveness of counsel during critical
proceedings affecting Petitioner’s 14th Amendment Due Process.
Supporting Facts: Counsel failed to object when trial court
erroneously imposed maximum, consecutive sentences.
(Amended Petition, Doc. No. 3, PageID 19-22.)

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Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Mays claimed he wanted to go to trial and would have
been acquitted, but his lawyer never talked with him about discovery, trial strategy, or other
defense measures. The Magistrate Judge found this Ground for Relief procedurally defaulted
because the truth of it obviously depended on conversations between Mays and his defense
counsel which occurred off the record. Such matters would not be discussed on the record in
order to protect attorney-client communication and work product privilege – essential to prevent
the prosecution from learning what the defense strategy was.
In Ohio, claims which depend on evidence which would not be on the record on appeal
must be brought by filing a petition for post-conviction relief under Ohio Revised Code §
2953.21.

Mays admitted in his Amended Petition that he had never filed such a petition

(Amended Petition, Doc. No. 3, PageID 19-22). He attempted to excuse this failure to file by
claiming that the ODRC was somehow obliged to assist him in such a filing and did not do so.
He also asserted “jailhouse lawyers wanted to charge me and I didn’t have the money to pay
them.” Id. The Report concluded neither of these facts, assuming their truth, was excusing
cause. (Report, Doc. No. 4, PageID 34, citing Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.
2004)).
In the Objections, Mays asserts that the ODRC has an obligation to “guarantee Ohio
inmates meaningful access to the courts” and when it does not provide such access, that
constitutes “government interference” sufficient to excuse the procedural default under Murray
v. Carrier, 477 U.S. 478 (1986)(Objections, Doc. No. 8, PageID 46).
Mays’ assertions of “government interference” are completely conclusory – he does not

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say what the prison officials did or when they did it that supposedly interfered with his filing a
post-conviction petition. In Bonilla, the case cited in the Report, the Sixth Circuit held that
failure to meet the 45-day time limit on appeal to Ohio Supreme Court is an adequate and
independent state ground. Bonilla, 370 F.3d at 497. It also held 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).
The ODRC policies which Mays cites do not in any way require prison officials to assist
prisoners in filing petitions for post-conviction relief beyond giving them reasonable access to
legal materials and allowing them to assist one another without charge. Ohio Admin. Code §
5129-9-20(B). The rules embedded in 59-LEG-01 merely particularizes the OAC rules.
In addition to his objection about government “interference,” Mays objects that “[w]hile
the R&R holds that the first ground depends on evidence outside the record, Petitioner submits
that his expressed dissatisfaction of [sic] his counsel was on the record.” (Objections, Doc. No.
8, PageID 46.) That objection misses the point. Even assuming Mays told the trial judge on the
record that he was dissatisfied with his counsel, that alone cannot prove ineffective assistance of
trial counsel.

Instead, Mays would have needed to show what he told his attorney about

witnesses, strategy, etc., how these would have provided a defense sufficiently persuasive that it
was deficient performance for counsel to have failed to present it, and then how Mays was
prejudiced by counsel’s failure. None of this appears in the record.
Mays’ objections on Ground One are without merit.

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Ground Two: Lack of Jury Determination of Guilt of Felonious Assault

As best the Magistrate Judge was able to understand it, Mays was attempting to raise in
his Second Ground for Relief the same claim made in his First Assignment of Error in the
Second District Court of Appeals, to wit, that a felonious assault that directly results in death
cannot be the underlying felony in a felony murder prosecution. The Second District concluded
this was not the law in Ohio. State v. Mays, 2012 Ohio 838, 2012 Ohio App. LEXIS 731 (2nd
Dist. 2012). The Report concluded there was no violation of Blakely v. Washington, 542 U.S.
296 (2004), in this decision because under Blakely, while all elements of a crime must be proved
to a jury beyond a reasonable doubt, it is the State which decides what the elements are. Here
the jury decided both that Mays was guilty of felonious assault and that, the assault having
resulted in death, Mays was also guilty of felony murder.
All Mays says in his Objections is that “Petitioner was entitled to have his guilt
determined beyond a reasonable doubt by a jury.” (Doc. No. 8, PageID 47.) He makes no
suggestion of how that did not happen in this case.
Mays’ Objections on Ground Two are without merit.

Ground Three: Ineffective Assistance of Trial Counsel

In his Third Ground for Relief, Mays asserts his trial attorney provided ineffective
assistance of trial counsel when he failed to object to the erroneous imposition of consecutive
maximum sentences. As noted in the Report, the Second District heard Mays’ claim that the
sentences were improper on direct appeal and decided they were not improper. State v. Mays,

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supra, at ¶¶ 20-26. The Report concluded because the court of appeals decided this claim on the
merits, trial counsel must have done enough to preserve the issue for appeal and there was no
merit to the claim (Report, Doc. No. 4, PageID 39).
In his Objections, Mays attempts to turn this claim from one alleging that the sentence
was illegal to one alleging that if his counsel had objected somehow differently, the sentence
would have been lighter. This claim is completely speculative; Mays offers no evidence in
support. Even if Mays has some evidence that the trial judge would have imposed a lighter
sentence, that evidence is either on the record or off the record. If it is on the record, Mays has
procedurally defaulted the claim by not raising it on direct appeal. If it is off the record, Mays
has procedurally defaulted it on the same basis as Ground One, to wit, by never filing a petition
for post-conviction relief.
Mays’ Objections on Ground Three are without merit.

Conclusion

Mays’ Objections are without merit. Construed as a motion for relief from judgment
under Fed. R. Civ. P. 60(b), they should be denied. Because reasonable jurists would not
disagree with this conclusion, Petitioner should be denied a certificate of appealability and the
Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.
September 25, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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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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