Banks v. Warden, Chillicothe Correctional Institution

Filing 9

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appe alability 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. Objections to R&R due by 12/26/2014. Signed by Magistrate Judge Michael R Merz on 12/9/2014. (kpf1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 7) to the
Magistrate Judge’s Report and Recommendations (Doc. No. 6) recommending the Petition be
dismissed with prejudice. Judge Rose has recommitted the case for reconsideration in light of
the Objections (Doc. No. 8).
Banks was convicted on his plea of guilty in the Montgomery County Common Pleas
Court of burglary, obstructing official business, and possession of criminal tools and sentenced
to eight years imprisonment (Petition, Doc. No. 2, PageID 80).1 He took no direct appeal, but

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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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later filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. Id. at
PageID 82. That petition was denied in the Common Pleas Court and the denial was affirmed on
appeal. Id. Banks’ attempted further appeal to the Ohio Supreme Court was rejected as untimely
because it was received November 19, 2013, one day after the forty-five day limit on filing such
appeals had expired. Id. at PageID 83.
Banks raises the following Grounds for Relief:
Ground One: Ineffective Assistance of Trial Counsel, in
Violation of Mr. Banks’ Sixth Amendment Rights.
Supporting Facts: 1. Mr. Banks’ trial attorney informed him that
for a guilty plea, he would receive a 4 year sentence, yet, Mr.
Banks received an 8 year sentence. 2. Mr. Banks’ trial attorney
did not comply with the Ohio Rules of Professional Conduct, in
which this act has also violated Mr. Banks’ Sixth Amendment
Rights.
Ground Two: The trial court’s termination entry is void due to
the fact that the trial court did not sign Mr. Banks’ termination
entry pursuant to Crim. R. 32(c).
Supporting Facts: 1. Mr. Banks’ termination entry is not valid
due to the fact that his trial judge did not [sign] the termination
entry. 2. No trial court signature is on Mr. Banks’ termination
entry.
Ground Three: The Ohio Supreme Court abused its discretion
when it did not file Mr. Banks’ Memorandum [in support of
jurisdiction] in a timely fashion.
Supporting Facts: 1. Mr. Banks’ Memorandum in support of
jurisdiction to the Ohio Supreme Court was due on November 18,
2013. 2. Mr. Banks placed his memorandum in the mail on or
about November 12, 2013. The Ohio Supreme Court stamped Mr.
Banks’ memorandum received on November 19, 2013, which is
one day late.
(Petition, Doc. No. 2.)

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Ground One: Ineffective Assistance of Trial Counsel in Plea Negotiations

Banks was indicted by the Montgomery County grand jury in Case No. 10-CR-1284 on
one count each of burglary, obstructing official business, and possession of criminal tools
(Principal Brief, Doc. No. 1-4, PageID 52). Subsequently he was indicted in Case No. 10-CR2935 with one count each of burglary, receiving stolen property, possession of criminal tools,
and escape. Id. at PageID 53. He pled guilty to all charges except for the escape charge, which
was dismissed, and was sentenced to concurrent prison terms totaling eight years. Id.
While he took no direct appeal, Banks did file a petition for post-conviction relief. The
Common Pleas Court denied relief and Banks appealed. The Second District Court of Appeals
affirmed the denial on two bases:
[*P14] In this case, Banks claims that he is entitled to postconviction relief because his trial counsel was ineffective. His
claim is based solely on conclusory and self-serving statements
contained in his petition regarding his interactions with counsel.
He did not demonstrate through the record or additional
documentary evidence that there are substantive grounds for relief.
Accordingly, the trial court properly denied the petition without
holding an evidentiary hearing.
[*P15] Banks's petition is also untimely. He did not directly
appeal his conviction; therefore, he had 180 days after the
expiration of time to file an appeal to file a petition. He was
convicted on July 8, 2011, and pursuant to App.R. 4, the expiration
of time to file an appeal is 30 days thereafter, which is August 7,
2011. Therefore, the deadline to file his petition for postconviction relief was 180 days later, or February 3, 2012. Banks
filed his petition on July 2, 2012, five months after the deadline.
State v. Banks, 2013-Ohio-4394, 2013 Ohio App. LEXIS 4632 (2nd Dist. Oct. 4, 2013).
This Court assumes for the sake of argument that Banks’ claims of ineffective assistance
of trial counsel made in the post-conviction petition are the same as he makes here, to wit, that

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his attorney promised him a four-year sentence instead of the eight he received. If such a
promise were made and not contradicted by the record made by the trial judge in taking the plea,
it would constitute ineffective assistance of trial counsel to have made the promise. The Court
notes, however, that Banks has changed his argument from the Petition to his Principal Brief
where he claims the State actually offered a four-year sentence (Doc. No. 1-4, PageID 62).
However, regardless of the content of his 2953.21 petition, Banks has procedurally
defaulted on his claims of ineffective assistance of trial counsel because he failed to file that
petition within the time allowed by Ohio law.
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.

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The Sixth Circuit Court of Appeals requires a four-part analysis on possible procedural
default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604
F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In this case, there clearly is an Ohio procedural rule which is applicable – the deadline for
filing a petition under Ohio Revised Code § 2953.21. Furthermore that rule was enforced against
Banks by the Second District. The rule is plainly independent of federal law and the Supreme
Court has routinely found state time limitations to be adequate as they protect the State’s interest
in the finality of criminal judgments. See, e.g., Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.
2004)(upholding the forty-five day time limit on appeals to the Ohio Supreme Court).
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Banks

has offered no excusing cause and prejudice for his late filing.
Therefore Ground One for Relief should be dismissed with prejudice.

Ground Two: Judgment Void for Lack of Signature

In his Second Ground for Relief, Banks claims his criminal judgment is void because it is
not signed. Despite repeated factual assertions to this effect, Banks does not attach a copy of the
purportedly unsigned termination entry.
Putting to one side the question whether the United States Constitution requires such a
signature, Banks cannot prevail on this claim because the Second District Court of Appeals
expressly found:
[*P19] As for the first unassigned argument, regarding the trial
judge's alleged failure to sign an entry, Banks does not specify
what entry was unsigned. Furthermore, we have reviewed the
docket and confirmed that all entries were signed in Case Nos.
2010 CR 01284 and 2010 CR 02935/01. Accordingly, this
argument has no merit.
State v. Banks, supra. Findings of fact by a state court later reviewed in habeas corpus are
presumed to be correct unless that presumption is overcome by clear and convincing evidence to
the contrary.

28 U.S.C. § 2254(e)(1).

Banks has presented no evidence to the contrary.

Therefore his Second Ground for Relief should be dismissed with prejudice.

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Ground Three: Abuse of Discretion by the Ohio Supreme Court

In his Third Ground for Relief, Banks claims the Ohio Supreme Court abused its
discretion when it failed to file his Memorandum in Support of Jurisdiction, even though he
admits that it was one day late. In the original Report the Magistrate Judge concluded this failure
to file on time worked a procedural default of all of Banks’ claims. In his Objections, he asserts
that he can show excusing cause and prejudice. In particular, he claims he can show he
deposited his Memorandum in Support of Jurisdiction in the prison mail system on November
12, 2013, six days before it was due. He asserts the Court will clearly see this when it examines
the exhibits attached to his Petition. However, although he has filed an Appendix which lists
Exhibits A through E which are purportedly attached, there are no such exhibits.
If Banks had such proof, the Court would be inclined to accept it as excusing cause for
failing to file in the Ohio Supreme Court. But even if the Court did so, that would not assist
Banks’ case because it would not excuse his prior failure to file his 2953.21 petition on time.
Nor

would

it

overcome

the

Second

District’s

factual

finding

that

all

relevant

termination/judgment entries in Banks’ cases were in fact signed.
Finally the Magistrate Judges notes that Ground Three does not state a claim on which
relief can be granted. Federal habeas corpus is available only to correct federal constitutional
violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13, 178 L. Ed. 2d
276 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982);
Barclay v. Florida, 463 U.S. 939 (1983).

Abuse of discretion is not a denial of due process

Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).

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Conclusion

Based on the foregoing analysis, it is again respectfully recommended that the Petition
herein 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.

December 8, 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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