Montgomery v. Warden, Warren Correctional Institution

Filing 10

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the case in light of the Objections, the Magistrate Judge again respectfully recommends the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this co nclusion, 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. Objections to R&R due by 9/19/2016. Signed by Magistrate Judge Michael R. Merz on 8/31/2016. (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
RODERICK T. MONTGOMERY,
Petitioner,

:

- vs -

Case No. 3:16-cv-089
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

Warden, Warren Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus action under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Objections (ECF No. 8) to the Magistrate Judge’s recommendation that the Petition be dismissed
with prejudice (Report and Recommendations, ECF No. 7, the “Report”). Judge Rice has
recommitted the case for reconsideration in light of the Objections (ECF No. 9).
The Report recommended Montgomery’s first three grounds for relief be dismissed as
procedurally barred because he failed to appeal to the Ohio Supreme Court after his conviction
was affirmed on direct appeal.
Montgomery responds that he attempted to appeal by “draft[ing] his timely notice of
appeal and hand plac[ing] it into the institution inmate post box labeled ‘legal mail . . .”
(Objections, ECF No. 8, PageID 1779). He claims that after that the appeal was out of his hands
and the Report was the “first he has ever heard that there was no cause of action pending in the
Ohio Supreme Court.” Id. Because he never received “notice of filing or docketing statement . . .
the original notice of appeal must have gotten lost within the mailing process.” Id.

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The Second District Court of Appeals decided his direct appeal October 11, 2013. State
v. Montgomery, 2013-Ohio-4509, 2013 Ohio App. LEXIS 4751

(2nd Dist. Oct. 11,

2013)(“Montgomery I”). Montgomery acknowledges that date in his Petition (ECF No. 1,
PageID 2, ¶ 9(d). His appeal to the Ohio Supreme Court would have been due forty-five days
later on November 25, 2013. Montgomery says nothing about when he mailed the notice of
appeal. When asked at question 9(g) if he sought further review in a higher state court, he
answers “yes,” but only lists the denial of review on the post-conviction petition. Montgomery
gives no indication of any follow up to find out what was happening on his direct appeal, even
after he received a denial of review on the second appeal.
As a remedy, Montgomery asks that his petition be dismissed voluntarily so that he can
now file a motion for delayed appeal in the Ohio Supreme Court (Objections, ECF No. 8,
PageID 1780). If the Court did that, Montgomery would likely face a statute of limitations bar
when he tried to return to federal court. While his original Petition was filed less than two weeks
short of one year after his conviction became final, the statute is not tolled while a habeas
petition is pending, and so has already expired.
To deal with this problem of unexhausted state remedies and the federal statute of
limitations, the Supreme Court decided Rhines v. Weber, 544 U.S. 269 (2005), holding
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court
determines there was good cause for the petitioner's failure to
exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. Cf. 28 U.S.C. §
2254(b)(2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State"). . . .
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On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally dilatory
litigation tactics.
Id. at 277-278.
Montgomery has not shown good cause for his delay in seeking Ohio Supreme Court
review. He offers no corroboration of his claim that he mailed a timely notice of appeal, but
even assuming the truth of that claim, he has offered no explanation at all of his failure to follow
up for almost three years. Even now he has known since the State Court Record was filed on
July 8, 2016, that there is no evidence of a direct appeal to the Ohio Supreme Court in the record.
Not only did he not filed for a delayed appeal in the interim, he never filed a reply to the Return
of Writ to make his claim of a lost-in-the-mail notice of appeal.
Montgomery’s Objection to the procedural default recommendation is not persuasive.
Montgomery makes no response at all to the recommended dismissal of Ground Four on
the merits.

Conclusion

Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends 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
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objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

August 31, 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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