The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge
This matter is before the Court on the Magistrate Judge's Report and Recommendation (doc. 18) and Petitioner's Objection (doc. 20). For the reasons indicated herein, the Court ADOPTS the Magistrate Judge's Report and Recommendation and DENIES Petitioner's Petition for Writ of Habeas Corpus.
On May 21, 1999, the Hamilton County, Ohio Court of Common Pleas sentenced Petitioner to terms of fifteen years and five months in prison for two counts of burglary, one count of misuse of a credit card, and one count of receiving stolen property (doc. 18). With the assistance of counsel, Petitioner filed an appeal to the Ohio Court of Appeals, First Appellate District, raising three assignments of error (Id.). The first assignment of error contended that the trial court admitted hearsay testimony of co-defendants (Id.). The second assignment of error alleged ineffective assistance of counsel at trial (Id.). The third assignment of error stated that the trial court conviction was based upon insufficient evidence, and that the conviction was against the manifest weight of the evidence (Id.). On May 1, 2000, the Court of Appeals affirmed the trial court's decision (Id.). Thereafter the Petitioner, proceeding pro se, filed a motion for leave to file a delayed appeal with the Ohio Supreme Court (Id.). On July 12, 2000, the Supreme Court of Ohio denied Petitioner's motion for delayed appeal and dismissed the appeal without opinion (Id.).
On July 16, 2001, Petitioner filed a pro se petition for a writ of habeas corpus alleging four grounds for relief (Id.). Ground one was newly discovered evidence, namely a tape-recorded statement made by a co-defendant (Id.). Ground two was that the trial court erred by allowing hearsay testimony of co-defendants (Id.). Ground three was that counsel's assistance was ineffective by failing to investigate or rebut testimony of State witnesses (Id.). Ground four was that the trial court erred by allowing the conviction to stand when the conviction was against the manifest weight of the evidence (Id.). Respondent filed a return of writ stating that the petition was time-barred under 28 U.S.C. § 2244(d) (Id.). On June 16, 2004 the Court rejected the Respondent's argument that the petition was time barred, and the Court stayed and administratively terminated the case pending Petitioner's exhaustion of state post-conviction remedies (Id.).
On April 5, 2004, Petitioner filed a petition for post-conviction relief with the Hamilton County Common Pleas Court based on newly discovered evidence (Id.). On June 10, 2004, the Hamilton County Common Pleas Court denied the petition on the reasoning that
(1) the claim was barred by res judicata, (2) as required by State v. Pankey, 428 N.E.2d 413 (Ohio 1981), the Petitioner had not supported the claim with evidentiary materials, and (3) under Pankey a newly discovered evidence claim was not justifiable in a post-conviction action (doc. 18). After appealing, on March 23, 2005, the Ohio Court of Appeals, First Appellate District, affirmed the trial court's judgment (Id.). In affirming, the Ohio Court of Appeals reasoned that Bohannon failed to file his petition for post-conviction relief timely according to R.C. 2953.21(A)(2), and further that Bohannon's petition for post-conviction relief did not make the necessary showings to overcome this tardiness (Id.). Petitioner's motion for reconsideration was denied by the Ohio Court of Appeals on April 21, 2005 (Id.). Additionally Petitioner appealed to the Ohio Supreme Court, and on August 10, 2005, the Ohio Supreme Court declined jurisdiction to hear the case and dismissed the appeal (Id.).
On February 16, 2006, Petitioner filed a motion to reopen the case involving the petition for writ of habeas corpus (Id.). The Court granted the Petitioner's motion to reopen the case. Respondent filed its supplemental return of writ, arguing that the Petitioner waived all the asserted grounds for relief due to procedural defaults in the state courts (Id.). The Magistrate Judge reviewed all of the pertinent documents and prepared his Report and Recommendation. This matter is now ripe for the Court's consideration.
II. The Magistrate Judge's Report and Recommendation
In recognizing the obligation of the state courts to protect constitutional rights of criminal defendants, the Magistrate Judge noted that a state defendant must fairly present any constitutional claims in a state court before instituting a federal habeas corpus action. Anderson v. Harless, 459 U.S. 4, 6 (1982). Furthermore, to satisfy the presentation requirement, the defendant's constitutional claims must be presented to the state's highest court. See Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990), cert. denied, 474 U.S. 831 (1985); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999). If a state defendant can no longer bring his constitutional claims in state court due to procedural default, he has waived his right to bring those claims in a federal habeas corpus action, unless he can show cause for the default or that a federal court's failure to consider the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
After reviewing Petitioner's grounds for relief, the Magistrate Judge found all grounds to be lacking in merit (doc. 18). As to grounds two, three, and four, the Magistrate Judge found that Petitioner's procedural default in state court barred his claim (Id.). Specifically, after the Ohio Court of Appeals affirmed the trial court, the Petitioner procedurally defaulted by failing to timely appeal to the Ohio Supreme Court (Id.). The Magistrate Judge further found that the Ohio Supreme Court's unexplained entry denying the Petitioner's motion for delayed appeal "constitutes a procedural ruling sufficient to bar federal court review of [a] habeas corpus petition." (Id. quoting Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (per curiam) cert. denied, 543 U.S. 989 (2004)).
As to the first ground for relief based on newly discovered evidence, the Magistrate Judge noted that Petitioner committed procedural default in state court by failing to timely bring the claim to the state court's attention under Ohio Rev. Code § 2953.21(A)(2) (doc. 18). Further, the Magistrate Judge found that this procedural default barred federal court review of Petitioner's habeas corpus petition (Id.). In making this finding, the Magistrate concluded that federal habeas corpus review may be barred when the state law judgment rests upon an adequate and independent basis, including when the adequate and independent basis is a violation of state procedural rules. Harris v. Reed, 489 U.S. 255, 260-62 (1989); Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). Citing Harris v. Reed, the Magistrate Judge further noted that when using a procedural default as the basis to bar federal review of a habeas corpus petition, the state law judgment must clearly and expressly state that its judgment rests on the state procedural bar (doc. 18, citing Harris, 489 U.S. at 263 (quotations omitted)). Moreover, the Magistrate concluded that where a state law judgment makes such a clear and express statement, a subsequent state court's affirmation without explanation is presumed to have considered the procedural default. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).
Having found, on all four grounds, that procedural defaults in state courts barred federal review of Petitioner's habeas corpus petition, the Magistrate Judge further found that the Petitioner failed to establish "cause" for his procedural defaults (doc. 18). Finally, the Magistrate Judge found that the Petitioner failed to show a fundamental miscarriage of justice if his claims are not considered (Id.).
Based on all of these findings, the Magistrate Judge recommended that the Court dismiss the Petitioner's habeas corpus petition with prejudice, not issue a certificate of appealability, and deny petitioner leave to appeal in ...