Stein v. Warden Ross Correctionl Institution

Filing 32

ORDER OVERRULING STEIN'S OBJECTIONS (DOC. 20 ) TO THE REPORT AND RECOMMENDATIONS (DOC. 11 ); OVERRULING STEIN'S OBJECTIONS (DOC. 28 ) TO THE SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 25 ); OVERRULING STEIN'SOBJECTIONS (D OC. 31 ) TO THE THIRD SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 30 ); ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. 11 ), SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 19 ), SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIO NS (DOC. 25 ), AND THIRD SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 30 ) IN THEIR ENTIRETY; DISMISSING STEIN'S PETITION FOR WRIT OF HABEAS CORPUS (DOC. 10 ) WITH PREJUDICE; DENYING ANY REQUESTED CERTIFICATE OF APPEALABILITY; CERTIFYING THAT ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS AND TERMINATING THIS. Signed by Judge Thomas M. Rose on 6/2/15. (ep)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SAMUEL C. STEIN,
Case No. 3:14-cv-274
Petitioner,
Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

v.
WARDEN, Ross Correctional Institution,

Respondent.
______________________________________________________________________________
ORDER OVERRULING STEIN’S OBJECTIONS (DOC. 20) TO THE
REPORT AND RECOMMENDATIONS (DOC. 11); OVERRULING STEIN’S
OBJECTIONS (DOC. 28) TO THE SECOND SUPPLEMENTAL REPORT
AND RECOMMENDATIONS (DOC. 25); OVERRULING STEIN’S
OBJECTIONS (DOC. 31) TO THE THIRD SUPPLEMENTAL REPORT
AND RECOMMENDATIONS (DOC. 30); ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATIONS (DOC. 11),
SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. 19),
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC.
25), AND THIRD SUPPLEMENTAL REPORT AND RECOMMENDATIONS
(DOC. 30) IN THEIR ENTIRETY; DISMISSING STEIN’S PETITION FOR
WRIT OF HABEAS CORPUS (DOC. 10) WITH PREJUDICE; DENYING
ANY REQUESTED CERTIFICATE OF APPEALABILITY; CERTIFYING
THAT ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS AND
TERMINATING THIS CASE
______________________________________________________________________________
This matter is before the Court on the Objections (Docs. 20, 28, 31) filed by Petitioner
Samuel C. Stein (“Stein”) to the Magistrate Judge’s Report and Recommendations (Doc. 11),
Supplemental Report and Recommendations (Doc. 19), Second Supplemental Report and
Recommendations (Doc. 25), and Third Supplemental Report and Recommendations (Doc. 30),
all of which recommended that Stein’s Petition Under 28 U.S.C. § 2254 For Writ Of Habeas
Corpus By A Person In State Custody (the “Petition”) (Doc. 10) be dismissed with prejudice. The
Magistrate Judge further recommended that, as reasonable jurists would not disagree with this
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conclusion, Stein should be denied a certificate of appealability and the Court should certify to the
Sixth Circuit Court of Appeals that any appeal would be objectively frivolous and Stein should not
be permitted to proceed in forma pauperis. (Doc. 30, PageID 1475.)
As stated below, the Court overrules Stein’s Objections (Docs. 20, 28, 31) and adopts the
Report and Recommendations (Doc. 11), Supplemental Report and Recommendations (Doc. 19),
Second Supplemental Report and Recommendations (Doc. 25), and Third Supplemental Report
and Recommendations (Doc. 30) in their entirety. Accordingly, Stein’s Petition (Doc. 10) is
dismissed with prejudice.
BACKGROUND
This is a habeas corpus case brought by Stein pro se under 28 U.S.C. § 2254. Stein filed
the Petition for habeas corpus relief on August 18, 2014. (Doc. 10.) On September 30, 2014, the
Respondent Mark Hooks, Warden of the Ross Correctional Institution in Chillicothe, Ohio,
(“Warden”) filed an Answer/Return of Writ (the “Answer”). (Doc. 7.) On December 1, 2014,
Stein filed a response to the Warden’s Answer. (Doc. 9.)
On December 10, 2014, Magistrate Judge Michael R. Merz entered the initial Report and
Recommendations, which recommended that the Petition be dismissed with prejudice. (Doc. 11.)
On January 8, 2015, Magistrate Judge Merz entered a Supplemental Report and
Recommendations, again recommending dismissal with prejudice of the Petition. (Doc. 19.) On
January 28, 2015, Stein filed Objections to the initial Report and Recommendations. (Doc. 20.)
On the next day, January 29, 2015, the Court entered a Recommittal Order directing Magistrate
Judge Merz to analyze Stein’s Objections and submit a supplemental report and recommendation.
(Doc. 21.)
On March 3, 2015, Magistrate Judge Merz entered the Second Supplemental Report and
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Recommendations. (Doc. 25.) Once again, he recommended dismissal with prejudice of the
Petition. (Id.) On March 23, 2015, Stein filed Objections to the Second Supplemental Report
and Recommendations. (Doc. 28.) On March 24, 2015, the Court entered a second Recommittal
Order directing Magistrate Judge Merz to supplement his prior Reports and Recommendations in
light of Stein’s Objections. (Doc. 29.) On March 31, 2015, Magistrate Judge Merz entered the
Third Supplemental Report and Recommendations, which recommended for the fourth time that
Stein’s Petition be dismissed with prejudice.

(Doc. 30.)

On April 20, 2015, Stein filed

Objections to the Third Supplemental Report and Recommendations. (Doc. 31.) The Warden
did not file a response to Stein’s most recent Objections, and the time for him to do so has expired.
As Stein’s Objections do not merit further consideration by the Magistrate Judge, the Reports and
Recommendations regarding Stein’s Petition are ripe for the Court’s review.
REVIEW
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the
District Judge completed a de novo review of the record in this case. Upon review, the Court
agrees with the thorough analysis contained in the Magistrate Judge’s Report and
Recommendations, Supplemental Report and Recommendations, Second Supplemental Report
and Recommendations, and Third Supplemental Report and Recommendations. The Court finds
that all of Stein’s Objections have been addressed in the Magistrate Judge’s prior Reports and
Recommendations.

Nonetheless, the Court will address Stein’s Objections to the Third

Supplemental Report and Recommendations to ensure a clear statement of the bases for the
Court’s dismissal of his Petition.

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The Warden’s Supposed Admissions
Stein previously asserted that the Warden failed to deny the factual allegations in the
Petition, “and as such is deemed to have admitted them under Fed. R. Civ. P. 8.” (Doc. 28,
PageID 1452.) The Magistrate Judge rejected this assertion, noting that the first sentence in the
Warden’s Answer read “Respondent Mark Hooks through counsel denies each of the allegations
made by Petitioner Samuel C. Stein (hereinafter ‘Stein’) except those expressly admitted herein.”
(Doc. 30, PageID 1467-68, citing Doc. 7, PageID 1088.) In Stein’s Objections to the Third
Supplemental Report and Recommendations, he now asserts that the Warden’s “general denial” is
not sufficient to deny the “actual details” contained in the Petition. (Doc. 31, PageID 1478, citing
Cristini v. McKee, 526 F.3d 888 (6th Cir. 2008); Chavez v. Morgan, 932 F. Supp. 1152 (E.D. Wisc.
1996); Felder v. Alabama, 943 So. 2d 802 (Alabama Crim. Appellate 2006).)

Stein’s

characterization of the Warden’s Answer as a “general denial” is inaccurate, and the Warden has
not admitted the factual allegations in the Petition.
“The procedure for responding to the application for a writ of habeas corpus . . . is set forth
in the habeas corpus statutes and, under Rule 81(a)(2), takes precedence over the Federal Rules.”
Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 269, n. 14, 98 S. Ct. 556, 563,
n. 14, 54 L.Ed.2d 521 (1978). Rule 5 of the Rules Governing § 2254 Cases states that the answer
to a habeas petition “must address the allegations in the petition. In addition, it must state whether
any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar,
non-retroactivity, or a statute of limitations.” Rule 5(b), 28 U.S.C. foll. § 2254. Here, in
addition to denying the Petition’s allegations, the Warden’s Answer detailed the procedural history
of Stein’s case at the trial and appellate level and responded to each of the grounds for relief
asserted in the Petition. (Doc. 7) The Answer was sufficient under Rule 5. Accordingly, the
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Magistrate Judge properly rejected Stein’s assertion that the Warden had admitted the Petition’s
allegations.
Res Judicata and Ohio Appellate Rule 26(B)
Stein argues that the doctrine of res judicata does not apply in cases where the petitioner
failed to raise claims on appeal due to ineffective assistance of appellate counsel. (Doc. 31,
PageID 1478-79, citing State v. Davis, 119 Ohio St. 3d 422 (citing State v. Murnahan, 63 Ohio St.
3d 60 (1992)).) As stated by the Magistrate Judge, “res judicata bars claims actually made and
decided and claims which could have been raised because they depend on the record, but were not
raised on direct appeal.” (Doc. 30, PageID 1469, citing State v. Perry, 10 Ohio St. 2d 175.) The
doctrine of res judicata applies to all covered claims regardless of whether the petitioner also has
brought a claim for ineffective assistance of appellate counsel under Ohio Appellate Rule 26(B).
Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2001) (raising a procedurally defaulted claim
in a Rule 26(B) application as an error committed by ineffective appellate counsel does not permit
consideration of that claim on the merits). Stein’s objection to the application of res judicata is
overruled.
Stein asserts that the Third Supplemental Report and Recommendations misstates the Ohio
Supreme Court’s holding in State v. Murnahan, 63 Ohio St. 3d 60 (1992) and that the Sixth
Circuit’s holding in Wogenstahl v. Mitchell, 668 F.3d 307 (6th Cir. 2001) is inapplicable in this
case. (Doc. 31, PageID 1479.) Stein is incorrect on both counts. The Court agrees with the
Magistrate Judge’s analysis and application of Murnahan and Wogenstahl. (Doc. 30, PageID
1470-71.) No further discussion of those cases is necessary here.
Stein also restates his objection to the Magistrate Judge’s consideration of his argument
that the Ohio court of appeals should not have denied his application under Ohio Appellate Rule
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26(B) as untimely. (Doc. 31, PageID 1479.) The Court agrees with the analysis of this issue in
the Third Supplemental Report and Recommendations, and has nothing to add to that analysis
here. (Doc. 30, PageID 1471-73.)
Martinez and Thaler
Stein argues that the Third Supplemental Report and Recommendations incorrectly applies
the Supreme Court’s holdings in Martinez v. Ryan, 566 U.S. __, 132 S. Ct. 1309, 182 L. Ed. 2d 272
(2012) and Trevino v. Thaler, __ U.S. __, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). (Doc. 31,
PageID 1480.) The Court disagrees; the Magistrate Judge has correctly applied both Martinez
and Trevino. (Doc. 11, PageID 1244; Doc. 25 at 9-10; Doc. 30, PageID 1473.)
Stein specifically takes issue with the statement that the Sixth Circuit “expressly held that
Martinez and Trevino do not apply to ineffective assistance of appellate counsel claims.” (Doc.
30, PageID 1473, citing Hodges v. Colson, 711 F.3d 589, 603 (6th Cir. 2013).) Stein states that he
has read Hodges and it contains “no mention of Trevino whatsoever.” (Doc. 31, PageID 1480.)
Stein is correct that, in Hodges, the Sixth Circuit did not expressly refer to Trevino. The Sixth
Circuit discussed Martinez at length, however, and expressly held that it does not apply to
ineffective assistance of appellate counsel claims. Hodges, 711 F.3d at 603. In Trevino, the
Supreme Court extended the same rule that it applied in Martinez to a prisoner’s claim for
ineffective assistance of trial counsel under Texas state law. Trevino, 133 S. Ct. at 1912. As
Trevino applied the same rule announced in Martinez, the Sixth Circuit’s holding in Hodges
applies equally to Trevino.
Individual Grounds for Relief
Stein objects to the analysis in the Third Supplemental Report and Recommendations of
certain individual grounds upon which he seeks relief. The Court addresses only those objections
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that purport to raise issues that have not already been addressed by the Magistrate Judge.
Grounds Twelve and Thirteen: Stein states that he is “extremely confused” by the
analysis of his twelfth and thirteenth grounds for relief. (Doc. 31, PageID 1480.) Stein’s
confusion appears to be due to a misunderstanding of the holding in Riley v. Gray, 674 F.2d 522
(6th Cir. 1982). Stein previously objected that his “trial counsel was ineffective for not appealing
the trial court’s decision [denying a motion to suppress] BEFORE trial.” (Doc. 28, PageID 1458
(emphasis in original).) In support of this objection, Stein cited Riley for the proposition that “a
criminal defendant, who has unsuccessfully sought to suppress evidence, may take a direct appeal
of that order, as of right, by filing a notice of appeal.” (Id., citing Riley, 674 F.2d at 526.) It
appears that Stein construes this quotation from Riley as establishing a right to appeal the denial of
a motion to suppress before trial. As noted by the Magistrate Judge, however, Riley does not
establish such a right. Riley holds that a “direct appeal” of the denial of a motion to suppress is
permitted, but any such appeal still must follow the entry of a final, appealable order, as required
by Ohio law. The Third Supplemental Report and Recommendations correctly states the law on
this issue and its application to Stein’s twelfth and thirteenth grounds for relief.
CONCLUSION
Stein’s Objections (Docs. 20, 28, 31) to the Report and Recommendations, Supplemental
Report and Recommendations, Second Supplemental Report and Recommendations, and Third
Supplemental Report and Recommendations are OVERRULED. The Magistrate Judge’s Report
and Recommendations (Doc. 11), Supplemental Report and Recommendations (Doc. 19), Second
Supplemental Report and Recommendations (Doc. 25), and Third Supplemental Report and
Recommendations (Doc. 30) are ADOPTED in their entirety. The Court hereby DISMISSES
Stein’s Petition (Doc. 10) with prejudice. In addition, the Court DENIES any request for a
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certificate of appealability and CERTIFIES to the Sixth Circuit that any appeal would be
objectively frivolous and Stein should not be permitted to proceed in forma pauperis.
DONE and ORDERED in Dayton, Ohio, this Tuesday, June 2, 2015.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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