Banks v. Warden, Chillicothe Correctional Institution

Filing 6

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court sh ould certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 12/8/2014. Signed by Magistrate Judge Michael R Merz on 11/20/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID E. BANKS,
Petitioner,

:

- vs -

Case No. 3:14-cv-393
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

WARDEN, Chillicothe Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner David E. Banks to obtain relief
from his conviction in the Montgomery County Common Pleas Court on charges of burglary,
obstructing official business, and possession of criminal tools (Petition, Doc. No. 2, PageID 11.)
The case is before the Court for initial review pursuant to Rule 4 of the Rules Governing
§ 2254 Cases which provides in pertinent part: “[i]f 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.”
Banks claims he was advised by his attorney that if he pled guilty, he would only be
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When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page
Identification Number in the upper right hand corner of every page. The attention of the parties is directed to this
Magistrate Judge’s Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in
this Court must be to the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion
to Dismiss, Doc. No. 27, PageID ___.) The large majority of cases before this Magistrate Judge are habeas corpus
cases with large state court records and correct citation to the record is critical to judicial economy. Therefore,
nonconforming filings will be stricken.

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sentenced to four years imprisonment, but in fact was sentenced to eight (Ground One for Relief,
PageID 84.) His Second Ground for Relief claims his judgment entry of conviction is not valid
because it is not signed. Id. at PageID 85. Finally, he claims the Supreme Court of Ohio abused
its discretion when it refused to accept his Memorandum in Support of Jurisdiction when it was
only one day late. Id. at PageID 87.
Banks raised his first two grounds for relief for the first time in his petition for postconviction relief under Ohio Revised Code § 2953.21. He timely appealed from denial of that
petition and received a decision on the merits from the Second District Court of Appeals.
However, he missed the deadline for appealing to the Supreme Court of Ohio. While Banks now
claims it was an abuse of discretion for the Ohio Supreme Court to refuse his filing, the Sixth
Circuit had held that the 45-day time limit on appeal to Ohio Supreme Court is an adequate and
independent state ground of decision.

Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.

2004)(citations omitted).
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).
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Because Banks did not timely file his appeal with the Supreme Court of Ohio, he has
procedurally defaulted on his claims. It is therefore respectfully recommended that the Petition
be dismissed with prejudice. 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 and therefore should not be permitted to
proceed in forma pauperis.
November 20, 2014.
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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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