Waller vs. Warden Terry Tibbals

Filing 27

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again 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 appealabili ty 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 10/6/2016. Signed by Magistrate Judge Michael R. Merz on 3/16/2016. (kpf)(This document has been sent 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
JASON WALLER,
Petitioner,

:

Case No. 3:15-cv-310

- vs -

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

TERRY TIBBALS, Warden,
London Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 25) to
the Magistrate Judge’s Report and Recommendations recommending dismissal of the Petition
with prejudice (“Report,” ECF No. 22).

Judge Rose has recommitted the case for

reconsideration in light of the Objections (Order, ECF No. 26).
The Amended Petition in this case pleads eleven Grounds for Relief (quoted in Report,
ECF No. 22, at PageID 1423-26). The Report recommended dismissal with prejudice of all
claims. Id. at PageID 1465. Waller objects to the analysis on only one sub-claim, the conclusion
that the first sub-claim of Ground One is procedurally defaulted (Objections, ECF No. 25,
PageID 1470). The claim referred to is that the jury instructions were improper in that “The trial
court was required to instruct the jury for the inferior offense of aggravated assault and failure to
do so constitutes plain error.” (Amended Petition, ECF No. 15, PageID 98.)
Waller raised this claim as his first assignment of error on direct appeal and the Second
District rejected the claim in part because Waller’s counsel had not preserve an objection for
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appeal. State v. Waller, 2014-Ohio-237, ¶ 35, 2014 Ohio App. LEXIS 217 (2nd Dist. Jan. 24,
2014). The Report concluded this failure was a procedural default which the Ohio courts held
against Waller (ECF No. 22, PageID 1434-37).
Waller now argues that his procedural default is excused by the ineffective assistance of
trial counsel he suffered when his trial attorney did not preserve this objection for appeal
(Objections, ECF No. 25, PageID 1470-71).
Waller is correct that attorney error amounting to ineffective assistance of counsel can
constitute cause to excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1985);
Howard v. Bouchard, 405 F.3d 459, 478 (6th Cir. 2005); Lucas v. O’Dea, 179 F.3d 412, 418 (6th
Cir. 1999); Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996).

However, the ineffective

assistance claim cannot be presented as cause if it also was procedurally defaulted in the state
courts, unless one of the standard excuses for that procedural default exists, to wit, actual
innocence or cause and prejudice. Edwards v. Carpenter, 529 U.S. 446 (2000).
Waller’s trial attorney’s failure to preserve the jury instruction issue was apparent on the
record. Under Ohio law, the claim of ineffective assistance of trial counsel in failing to preserve
the error would usually be required to be raised on direct appeal or be barred from being raised
later by Ohio’s criminal res judicata doctrine. State v. Perry, 10 Ohio St. 2d 175 (1967).
However, res judicata does not apply when the same attorney represents a defendant at trial and
on appeal. State v. Lentz, 70 Ohio St. 3d 527, 529-530 (1994). Therefore Waller could have
raised this claim of ineffective assistance of trial counsel in a petition for post-conviction relief
under Ohio Revised Code § 2953.21. Waller filed such a Petition raising claims of ineffective
assistance of trial counsel (State Court Record, ECF No. 17, PageID 355 et seq.) However, he
made no claim that counsel was ineffective in failing to object to the jury instructions, nor did he

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appeal when the trial court denied his post-conviction petition. Thus Waller forfeited his claim
of ineffective assistance of trial counsel as excusing cause by not presenting it to the Ohio courts.
Under Edwards v. Carpenter, supra, he cannot now use that failure of trial counsel as excusing
cause.
Because the only objection Mr. Waller makes to the Report is not well taken, it is again
respectfully recommended that the Petition be DSIMISSED WIUTH 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.

September 16, 2016.
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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