Lackey v. Warden, London Correctional Institution

Filing 17

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the Report in light of the Objections, the Magistrate Judge again respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with thi s 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. Objections to R&R due by 6/14/2017. Signed by Magistrate Judge Michael R. Merz on 5/31/2017. (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
EDDIE M. LACKEY,
Petitioner,

:

- vs -

Case No. 3:16-cv-458
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, London Correctional
Institution
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s objections (ECF No. 15) to
the Magistrate Judge’s Report and Recommendations recommending that the Petition be
dismissed with prejudice (ECF No. 14). District Judge Rice has recommitted the case for
reconsideration in light of the Objections (ECF No. 16).
Mr. Lackey pleaded the following Grounds for Relief:
GROUND 1: The Trial Court violated Petitioner’s Fifth, Sixth,
and Fourteenth Amendment rights when it amended the B.
indictment and denied Judgment of Acquittal due to insufficient
evidence to establish Petitioner’s identity.
GROUND 2: Due Process and Equal protection violated by
allowing conviction based on testimony of co-conspirator alone.
GROUND 3: Violation of Due process and equal rights by
allowing a conviction using prejudicial evidence.
GROUND 4: Second Appellate District violated due process and
equal protection when Judicial and Prosecutorial misconduct
committed.
(Petition, ECF No. 1.)

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Procedural Default

The Report recommends that all claims except the amendment to the indictment portion
of Ground One be dismissed as procedurally defaulted (ECF No. 14, PageID 1098-1101).
The Objections read this portion of the Report as asserting Mr. Lackey has failed to
exhaust these claims (ECF No. 15, PageID 1110-11). That, however, is not the recommended
holding. Rather, the Report finds these claims were procedurally defaulted. If the difficulty
were lack of exhaustion, the Court could hold the habeas proceedings in abeyance and allow Mr.
Lackey to return to state court to exhaust. Rhines v. Weber, 544 U.S. 269 (2005). Unlike a
failure to exhaust, however, a procedural default results from a failure to present a claim to the
state courts when there is no longer an available state court remedy. "A claim may become
procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013), quoting
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted
where state-court remedies have been exhausted within the meaning of § 2254, but where the last
reasoned state-court judgment declines to reach the merits because of a petitioner's failure to
comply with a state procedural rule. Id. Second, a claim is procedurally defaulted where the
petitioner failed to exhaust state court remedies, and the remedies are no longer available at the
time the federal petition is filed because of a state procedural rule. Id.
Here, all of Mr. Lackey’s claims except the portion of Ground One that relates to the
amendment of the indictment could have been presented on direct appeal but were not. Under
Ohio law that means they could not later be raised in any other post-judgment proceeding. State
v. Perry, 10 Ohio St. 2d 175 (1967).
Federal habeas law allows a petitioner to excuse a procedural default – such as failure to

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present a claim on direct appeal – if he or she can show cause for and prejudice from the default.
Wainwright v. Sykes, 433 U.S. 72 (1977). Attorney error amounting to ineffective assistance of
counsel in a proceeding in which one is constitutionally entitled to such assistance, such as a
direct criminal appeal, can constitute cause. Murray v. Carrier, 477 U.S. 478, 485 (1986).
However, before ineffective assistance of appellate counsel can be held to constitute cause, that
claim must itself be properly presented to the state courts. Edwards v. Carpenter, 529 U.S. 446
(2000). A claim of ineffective assistance of appellate counsel is itself subject to procedural
default if it is not properly presented. Here Mr. Lackey presented his claim of ineffective
assistance of appellate counsel to the Second District Court of Appeals by an application for
reopening of the direct appeal under Ohio R. App. P. 26(B). But, as the Second District held, he
procedurally defaulted that claim by filing the 26(B) application outside of the allowed time.
State v. Lackey, Case No. 28293 (Ohio App. 2d Dist. Jun 28, 2016)(unreported, copy at ECF No.
8, PageID 284, et seq), appellate jurisdiction declined, State v. Lackey, 146 Ohio St. 3d 1516
(2016).
Mr. Lackey’s claims in the Objections (ECF No. 15, PageID 1111) that the Ohio
Supreme Court has instructed the Ohio courts of appeals to consider plain error is not applicable
because that standard does not override the time limitations for a Rule 26(B) application. Mr.
Lackey also adverts to the “fundamental miscarriage of justice” excuse for procedural default
(Id.), but that exception only applies to a petitioner who has produced new reliable evidence of
his or her actual innocence, which has not happened here. Souter v. Jones, 395 F.3d 577 (6th Cir.
2005), citing Schlup v. Delo, 513 U.S. 298 (1995).

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Improper Amendment of the Indictment

The Report recommended that the one non-defaulted claim in the Petition – that the
indictment had bene improperly amended at trial – be dismissed on the merits (Report, ECF No.
14, PageID 1101-09). The Indictment had charged Lackey with conspiring to commit arson
during the period April 8 through April 12, 2013. On motion of the State, that period was
limited to April 8-9, 2013. The Report found
The effect of the amendment 1 to the B indictment was to narrow
the dates of the alleged conspiracy. The Second District found this
made the notice to Mr. Lackey more precise. He does not advise
the Court why this would have made it more difficult for him to
defend, nor did he ask for a continuance to adjust his defense.
Id. at PageID 1108.
In his Objections, Mr. Lackey conflates arguments under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution with arguments about his Ohio constitutional
right to be charged by indictment (Objections, ECF No. 15, PageID 1111-13). His principal
reliance is on State v. Vitale, 96 Ohio App. 3d 695 (8th Dist. 1994). In that case the Eighth
District found the Cuyahoga County Court of Common Pleas violated Ohio R. Crim. P. 7(D)
when it allowed an amendment to change the date of the offense from “June 14, 1991,” to “June
14 through June 21, 1991.” Id. at 699. The Eighth District concluded the issue was not whether
Vitale had been surprised – whether he had adequate notice – but whether “he was convicted on
the same evidence on which he was indicted.” Id. at 700. The court’s ruling is clearly based on a
defendant’s right under Ohio law to be tried on the same offense for which he was indicted. But
that is an Ohio right only. As the Report notes, the Grand Jury Clause of the Fifth Amendment
has never been extended to the States (ECF No. 14, PageID 1107, citing Hurtado v. California,

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110 U.S. 516 (1884); Branzburg v. Hayes, 408 U.S. 665, 687-88 n. 25 (1972); and Gerstein v.
Pugh, 420 U.S. 103 (1975)).
The Report also notes that Mr. Lackey had a due process right to be given fair notice of
the charges against him. Id. at PageID 1108. A claim of violation of this constitutional right was
presented to the Second District Court of Appeals along with Mr. Lackey’s other claims about
how the amendment violated his rights. The Second District decided that claim on the merits.
State v. Lackey, 2015-Ohio-5492, 55 N.E. 3d 613, 2015 Ohio App. LEXIS 5308 (2nd Dist. Dec.
29 2015). As Mr. Lackey conceded in his Traverse and as the Report found, this Court must
defer to that decision unless Mr. Lackey can show that it involved an unreasonable application of
clearly established United States Supreme Court precedent. 28 U.S.C. § 2254(d)(1). This Mr.
Lackey has not done. As noted, his principal reliance is on Vitale, an Ohio appellate decision
which in itself does not rely on the Sixth Amendment right to fair notice.
Logically, if Mr. Lackey was prepared to defend against a claim that he conspired from
June 8 through June 13, how could he be unprepared to defend against a small portion of that
time? He has not argued he was unprepared, but relies on the formality of the change of dates,
not accounting for the fact that it was a constriction of dates.

Conclusion

Having reconsidered the Report 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 objectively frivolous

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and therefore should not be permitted to proceed in forma pauperis.

May 31, 2017.
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 mail. .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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