Ulrich v. Warden Noble Correctional Institution

Filing 5

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed as in part procedurally defaulted and in part without merit. 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. Objections to R&R due by 10/3/2013. Signed by Magistrate Judge Michael R Merz on 9/16/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
STEVEN M. ULRICH,
Petitioner,

:

- vs -

Case No. 3:13-cv-274
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

TIMOTHY BUCHANON, Warden,,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 3) to the
Magistrate Judge’s Report and Recommendations (Doc. No. 2). Judge Black has recommitted
the matter for reconsideration in light of the Objections (Doc. No. 4).
In the Report, the Magistrate Judge recommended the case be dismissed as barred by
Ulrich’s procedural default in that he did not appeal to the Ohio Supreme Court from the last
decision of the Second District Court of Appeals in his case, State v. Ulrich, 2012 Ohio 3726,
2012 Ohio App. LEXIS 3293 (2nd Dist. Aug. 17, 2012)(Ulrich IV)(Report, Doc. No. 2, PageID
32-33).
Ulrich’s Objection No. 1 is that he did appeal to the Ohio Supreme Court. He attaches
his Memorandum in Support of Jurisdiction in Ohio Supreme Court Case No. 08-1744, an appeal
from the judgment of the Second District Court of Appeals reported at State v. Ulrich, 2008 Ohio
3608, 2008 Ohio App. LEXIS 3060 (July 18, 2008)(Ulrich I). The Supreme Court declined to

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review that decision. State v. Ulrich, 120 Ohio St. 3d 1455 (2008). He provides no proof of an
appeal from the 2012 appellate decision (Ulrich IV). Other opinions of the court of appeals in
this case appear at State v. Ulrich, 2011 Ohio 758, 2011 Ohio App. LEXIS 654 (2nd Dist. Feb.
18, 2011)(Ulrich III), and State v. Ulrich, 2009 Ohio 4610, 2009 Ohio App. LEXIS 3895 (2nd
Dist. Sept. 4, 2009)(Ulrich II).
Ulrich pleads the following Grounds for Relief:
Ground One: Petitioner received ineffective assistance of counsel
at both the guilt and penalty phases of those state court
proceedings.
Supporting Facts:
Counsel failed to present defense theory of facts.
Counsel failed to challenge composition before the grand jury or
challenge the charging offenses in intrim [sic].
Counsel did not properly present the facts of the case before the
jury or charge the jury correctly as to any lesser offense.
Counsel should not have appeared in the case/trial as a matter of
ethics.
Ground Two: Petitioner claims the trial court erred when
becoming [sic] aware of a potential conflict with attorney
Marshall’s appearance but failed to inquire into this fact.
Supporting Facts: Any reasonable trier of fact could conclude
that an attorney in trial counsel’s position could not function as an
attorney guaranteed a criminal defendant at trial and required
under the 6th Amendment, U.S. Constitution, and had an obligation
to hold a conflict probable cause hearing, a failure to do so is an
automatic reversable [sic] error where prejudice is assumed, sub
judice.
Ground Three: The state court decision was contrary to or
involved an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States.
Supporting Facts: The state courts’ decisions and opinions were
contrary to clearly established federal law or involved an
unreasonable application to the United States Supreme Court’s

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decision in Strickland v. Washington, Gideon v. Wainright,
Apprendi v. New Jersey, Blakely v. Washington.
Ground Four: The state courts decisions resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Supporting Facts:
The State was aware of at least one victim’s violent disposition and
in-competent [sic] demeanor and substance abuse.
The State was in possession of exculpatory evidence but failed to
disclose it at trial.
The court of appeals de novo review fell short of the probative
value of evidence.
The court of appeals failed to recognize the evidence of a potential
conflict with trial counsel (Marshall) and/or Hodge (sentencing
counsel).
(Petition, Doc. No. 1, PageID
In Ulrich I, Petitioner’s assignments of error are as follows:
First: The trial court erred by not allowing the defense counsel to explore the self defense
defense or consider a witness’s prior felony convictions when they put their credibility at issue
upon taking the witness stand.
Second: The trial court erred in sentencing in that it did not pronounce a specific sentence.
Third: Appellant asserts ineffective assistance of counsel (regarding unspecified failures to
object and attorney Marshall’s suspension from the practice of law after the trial).
The court of appeals overruled all three assignments of error and affirmed the judgment. Ulrich
I. On pro se appeal to the Ohio Supreme Court, Ulrich raised the same claims made in
Assignments of Error One and Three.
In Ulrich II, the court of appeals granted reopening under Ohio R. App. P. 26(B) to
consider an omitted assignment of error regarding merger of offenses under Ohio’s multiple
count statute, Ohio Revised Code § 2941.25, and granted relief, remanding for resentencing.

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After resentencing, Ulrich appealed again and the court of appeals again remanded for the State
to elect one of the merged offenses for sentencing purposes and for the trial court to enter a
judgment identifying the means of conviction. Ulrich III. After resentencing, Ulrich again
appealed, raising, among other things, his claim he received ineffective assistance by virtue of
attorney Marshall’s later discipline. The court of appeals found that claim was res judicata,
having been decided in Ulrich I.
Thus it appears that the only claim or claims Ulrich has preserved for federal habeas
review are the claim or claims relating to attorney Marshall’s discipline. That claim is adverted
to in (1) the fourth set of supporting facts on Ground One, (2) Ground Two, and (3) the fourth set
of supporting facts on Ground Four.
As arguments to overcome his procedural default on Ground One, Ulrich argues that the
case was stalled in the court of appeals, that he had no means to perfect a Supreme Court appeal,
and that he was under heavy medication adversely affecting his ability to function and reason,
and he was without the assistance of counsel or funds to afford counsel (Petition, Doc. No. 1,
PageID 5). He recites that Ground Two is intertwined with Ground One. Id. at PageID 7. As to
Ground Three he states that he “[i]n part raised ineffective assistance of counsel claim for
counsel’s failure to protect his client’s interest in guilt or punishment phases by asserting
Apprendi and Blakely violations.” Id. at PageID 9. As to Ground Four, he claims that “[i]n part,
the issues on ineffective assistance of counsel were presented but improperly defined.” Id. at
PageID 10. Finally, he admits that not all grounds for relief presented in the Petition have been
presented to the state courts, claiming “Petitioner was unavoidably prevented from presenting his
claims to the highest state court do [sic] to defective state court process, no legal assistance
programs that adequately function as a mechanism for a convicted defendant who is under a

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disability.” Id. at PageID 12.
Ulrich has not offered sufficient facts to overcome his procedural default in presenting
his claims either to the Second District Court of Appeals or to the Ohio Supreme Court. Lack of
counsel on appeal to the Ohio Supreme Court, 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 v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004), citing Murray v. Carrier, 477 U.S.
478, 494-95 (1986). There is no constitutional right to appointed counsel beyond the first appeal
of right. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974).
Whatever disabilities Ulrich claims to have been under at some times while this case was
pending (and he offers no proof), he was sufficiently competent to file the pro se brief in the
Ohio Supreme Court from Ulrich I, which is the place where the omitted claims should have
been raised.
Except for the Marshall discipline matter, none of these claims was raised in Ulrich I,
where Ulrich was represented by different counsel from his trial and sentencing attorneys. The
claims do not depend on matter outside the record, so they were required to be raised on direct
appeal or be forfeited under Ohio’s criminal res judicata doctrine. State v. Perry, 10 Ohio St. 2d
175 (1967), an adequate and independent state ground of decision. 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).
One possible excuse for not raising these claims in Ulrich I would be a claim of
ineffective assistance of appellate counsel. However, before relying on such a claim in federal

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habeas, it must be presented to the state courts. Edwards v. Carpenter, 529 U.S. 446 (2000).
Even though he successfully filed a pro se 26(B) application, which is the vehicle for raising
ineffective assistance of appellate counsel claims in Ohio, he did not include any claim that Mr.
Daley was ineffective on appeal for failing to raise any of the claims he now makes. Thus the
Magistrate Judge concludes all of Ulrich’s claims are barred by his failure to raise them on
appeal either to the Second District Court of Appeals or to the Ohio Supreme Court.
Ulrich’s claim about Marshall was raised in both of those courts and decided against him
in Ulrich I. Because his case remained pending in the Ohio courts from August, 2012, his
habeas corpus petition is timely. The Second District Court of Appeals decided this claim as
follows:
THIRD ASSIGNMENT OF ERROR

[*P49] "APPELLANT ASSERTS INEFFECTIVE ASSISTANCE
OF COUNSEL."

[*P50] Counsel's performance will not be deemed ineffective
unless and until counsel's performance is proved to have fallen
below an objective standard of reasonable representation and, in
addition, prejudice arises from counsel's performance. Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must affirmatively
demonstrate to a reasonable probability that were it not for
counsel's errors, the result of the trial would have been different.
Id. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
[*P51] Defendant claims that his trial counsel performed
deficiently because he failed to object at trial, although Defendant
fails to identify what it is he claims his counsel should have
objected to. A review of the trial record discloses that defense
counsel did object at trial to certain testimony by the State's
witnesses, and moved to strike inappropriate prejudicial testimony.
No deficient performance by counsel has been demonstrated.

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[*P52] Defendant also suggests that his trial counsel provided
ineffective representation because counsel was suspended from the
practice of law by the Ohio Supreme Court after Defendant's trial,
but before sentencing. The trial court addressed counsel's
suspension prior to imposing sentence and concluded that the
reasons for counsel's suspension were unrelated to this case and
that there was no basis to find ineffective assistance of counsel in
this case.
Once again, no deficient performance by counsel has been
demonstrated and ineffective assistance of counsel has not been
established. Defendant's third assignment of error is overruled. The
judgment of the trial court will be affirmed.
Ulrich I at ¶¶ 49-52.
As Ulrich recognizes in his Petition, when a state court decides a question of
constitutional law in a criminal case, that decision can be overturned in federal habeas corpus
only if it is an unreasonable application of clearly established federal law or results from an
unreasonable determination of facts based on the evidence presented. Harrington v. Richter, 562
U.S. ___, 131 S.Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 141 (2005); Bell v. Cone,
535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000), Bell v.
Howes, 703 F.3d 848 (6th Cir. 2012).
Ulrich’s argument seems to be that Marshall’s performance was deficient because he was
under investigation for the ethics violations which ultimately led to his disbarment. However,
there is no presumption of deficient performance from the fact of being under investigation.
Moreover, Ulrich did not identify to the court of appeals and does not identify to this Court any
actual deficient performance.1 The Second District applied the correct legal standard under
Strickland, supra, and Ulrich has shown no way in which that decision was unreasonable, nor
has he pointed to any relevant facts the court of appeals ignored in reaching its decision.
1

This Court has reviewed the disciplinary records in reference to Attorney Marshall. None of the allegations
involved included action or inaction in Mr. Ulrich’s case.

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Therefore Ulrich’s claims relating to the alleged ineffectiveness of Mr. Marshall are without
merit.

Conclusion

Based on the above analysis, it is respectfully recommended that the Petition be
dismissed as in part procedurally defaulted and in part without merit. 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 16, 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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