Robinson v. Haviland

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ANTHONY J. ROBINSON, CASE NO. 2:20-CV-5195 Petitioner, JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Chelsey M. Vascura v. UNITED STATES OF AMERICA, Respondent. REPORT AND RECOMMENDATION Petitioner, a state prisoner, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 . This case has been referred to the undersigned pursuant to 28 U.S.C. § 636 (b) and Columbus’ General Order 14-1 regarding assignments and references to United States Magistrate Judges. This matter is before the Court on its own motion under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court conducts a preliminary review to determine whether “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” If it does so appear, the petition must be dismissed. Id. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED. I. BACKGROUND Petitioner challenges his October 2017 conviction after a jury trial in the Franklin County Court of Common Pleas on murder. On November 2, 2017, the trial court imposed a sentence of fifteen years to life imprisonment. On February 14, 2019, the Ohio Tenth District Court of Appeals affirmed that judgment. State v. Robinson, 10th Dist. No. 17AP-853, 2019 WL 645023 (Ohio Ct. App. Feb. 14, 2019). Petitioner did not file a timely appeal. On March 3, 2020, the Ohio Supreme Court denied Petitioner’s motion for a delayed appeal. State v. Robinson, 158 Ohio St.3d 1421 (Ohio 2020). On March 30, 2020, Petitioner filed this habeas corpus petition. He asserts that the trial court unconstitutionally admitted evidence of Petitioner’s flight to support an inference of guilt (claim one); and that he is actually innocent of the charges (claim two). For the reasons that follow, neither of these claims provide relief. II. ANALYSIS A. Actual Innocence To the extent that Petitioner raises an independent or “free-standing” claim of actual innocence, that claim does not provide him a basis for relief. See Legrone v. Birkett, 571 F. App’x 417, 421 (6th Cir. 2014) (citing Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[C]laims of actual innocence . . . have never been held to state a ground for federal habeas relief absent an independent constitutional violation[.]”); see also Patterson v. Tibbals, No. 3:16-cv-098, 2018 WL 3957404 , at *4 (S.D. Ohio Aug. 17, 2018) (claim of actual innocence fails to state a claim upon which relief can be granted) (citations omitted)). Put simply, Petitioner’s claim of actual innocence does not provide him an independent basis for federal habeas corpus relief. Liberally construing the pleadings, Petitioner also raises a claim of insufficiency of the evidence. But as discussed below, Petitioner has procedurally defaulted this claim.1 1 This Court may sua sponte raise the issue of procedural default when conducting preliminary review under Rule 4. See Rico Sanchez v. Turner, No. 2:19-cv-1243, 2019 WL 1778945 , at *1 n.1 (S.D. Ohio Apr. 23, 2019) (citing Watkins v. Warden, Dayton Corr. Inst., No. 2:16-cv-00501, 2016 WL 4394138 , at *2 (S.D. Ohio Aug. 18, 2016) (“[A]lthough federal courts are not required to raise procedural default sua sponte, neither are they precluded from doing so.”) (internal citation omitted)). B. Procedural Default 1. Standard Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254 (a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254 (b), (c). If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270 , 275–78 (1971)). Where a petitioner has failed to exhaust claims but would find those claims barred if later presented to the state courts, “there is a procedural default for purposes of federal habeas.” Coleman v. Thompson, 501 U.S. 722 , 735 n.1 (1991). The term “procedural default” has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538 , 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not resolved on the merits in the state proceeding due to respondent’s failure to raise them there as required by state procedure” also cannot be resolved on their merits in a federal habeas case—that is, they are “procedurally defaulted.” To determine whether procedural default bars a habeas petitioner’s claim, courts in the Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part analysis of Maupin). 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 determine whether the state courts actually enforced the state procedural sanction. Third, the court must determine whether the forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin, 785 F.2d at 138 . Finally, if “the court determines that a state procedural rule was not complied with and that the rule [has] an adequate and independent state ground, then the petitioner” may still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he or she was actually prejudiced by the alleged constitutional error. Id. Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner must show that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim generally must “‘be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.’” Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is because, before counsel’s ineffectiveness will constitute cause, “that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to “satisfy the ‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself.” Edwards v. Carpenter, 529 U.S. 446 , 450–51 (2000). The Supreme Court explained the importance of this requirement: We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in Coleman: “In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.” 501 U.S., at 732 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 . We again considered the interplay between exhaustion and procedural default last Term in O'Sullivan v. Boerckel, 526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to “‘protect the integrity’ of the federal exhaustion rule.” Id., at 848 , 526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (quoting id., at 853 , 526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by “‘letting the time run’ ” so that state remedies were no longer available. Id., at 848 , 526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 . Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have “concededly exhausted his state remedies,” it could hardly be said that, as comity and federalism require, the State had been given a “fair ‘opportunity to pass upon [his claims].’” Id., at 854 , 526 U.S. 838 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204 , 70 S.Ct. 587 , 94 L.Ed. 761 (1950)). Edwards, 529 U.S. at 452–53. If, after considering all four factors of the Maupin test, the court concludes that a procedural default occurred, it must not consider the procedurally defaulted claim on the merits unless “review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478 , 495–96 (1986)). 2. Application Petitioner asserts that the trial court unconstitutionally admitted evidence of Petitioner’s flight to support an inference of guilt. Petitioner did not raise this claim on direct appeal. He may now no longer do so, under Ohio’s doctrine of res judicata. “It is well-settled that ‘[c]laims appearing on the face of the record must be raised on direct appeal, or they will be waived under Ohio’s doctrine of res judicata.’” Teitelbaum v. Turner, No. 2:17-cv-583, 2018 WL 2046456 , at *15 (S.D. Ohio May 2, 2018) (quoting Hill v. Mitchell, No. 1:98-cv-452, 2006 WL 2807017 , at *43 (S.D. Ohio Sept. 27, 2006)) (citing State v. Perry, 10 Ohio St.2d 175 , 226 N.E.2d 104 (1967)). Petitioner violated the res judicata rule set forth in Perry when he failed to raise his claims on direct appeal, and, consequently, the first prong of the Maupin test is satisfied. Moreover, Ohio courts have consistently relied upon the doctrine of res judicata to refuse to review the merits of procedurally barred claims. See, e.g., State v. Cole, 2 Ohio St.3d 112 (1982). The Sixth Circuit has held that Ohio’s doctrine of res judicata is an independent and adequate ground for denying federal habeas relief. See, e.g., Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417 , 427–29 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486 , 521–22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Turning to Maupin’s independence prong, under the circumstances presented here, Ohio’s doctrine of res judicata does not rely on or otherwise implicate federal law. Accordingly, the undersigned finds that the first three Maupin factors are satisfied. Liberally construing the pleadings, Petitioner also asserts that the evidence is constitutionally insufficient to sustain his conviction. Petitioner properly raised this claim on direct appeal; however, he failed thereafter to file a timely appeal to the Ohio Supreme Court. The Ohio Supreme Court denied his motion for a delayed appeal. Petitioner thereby committed a procedural default and likewise has waived this claim for review in these proceedings. See Smith v. State of Ohio Dep’t of Rehab. & Corr., 463 F.3d 426 , 431–32 (6th Cir. 2006) (citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)). In addition, the record fails to contain evidence reflecting that Petitioner can satisfy his burden to establish cause for these procedural defaults. See Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (burden on petitioner to establish cause). A petitioner’s pro se status, ignorance of the law, or ignorance of procedural requirements are insufficient bases to excuse a procedural default. Bonilla, 370 F.3d at 498 . Rather, in order to establish cause, a petitioner “must present a substantial reason that is external to himself and cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007). Finally, the record does not reflect that this is “an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent” so as to excuse Petitioner’s otherwise procedurally defaulted claims. Murray, 477 U.S. at 496 . III. DISPOSITION For the reasons set forth above, it is RECOMMENDED that this action be DISMISSED. PROCEDURE ON OBJECTIONS If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636 (b)(1). The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue. /s/ Chelsey M. Vascura___ CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE