The opinion of the court was delivered by: Judge Michael R. Barrett
Before the Court is the November 22, 2006 Magistrate Judge's Report and Recommendation ("R&R") (Doc. 13) regarding Petitioner's Motion "to hold proceedings in abeyance pending exhaustion of state remedies," Respondent's Response in Opposition, and Petitioner's reply thereto. (Docs. 9, 11, 12) The Magistrate Judge also considered the petition for writ of habeas corpus (Doc. 3), Respondent's Return of Writ with exhibits (Doc. 7), and Petitioner's "traverse" in reply to the Return of Writ (Doc. 8).
The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Petitioner filed timely objections to the R&R. (Doc. 16)
On January 24, 2003, a grand jury issued a sixteen count indictment against Petitioner charging him with eight counts of aggravated robbery with firearm specifications and eight counts of robbery. (Doc. 7, Ex. A) The charges were based upon seven incidents occurring in small convenience stores and another incident in the law offices of attorney Bruce Hust. (Id., Exs. A, E) On February 13, 2003, a second indictment was issued, charging Petitioner with one count of aggravated robbery with firearm; two counts of robbery; and one count of felonious assault with firearm specifications. (Id., Ex. B) These charges stemmed from incidents involving victims Cheryl Clevenger and Mary Smith. (Id., Exs. A, E)
It appears that the two indictments were consolidated for jury trial after Petitioner entered guilty pleas to seven aggravated robbery counts, stemming from the incidents that occurred in the convenience stores, in exchange for dismissal of the firearm specifications and corollary robbery charges as well as the imposition of prison sentences totaling fifteen years on the seven counts. (Id., Ex. E) After a jury trial, Petitioner was convicted on all counts, but acquitted on the one-year firearm specifications; and the remaining three-year firearm specifications were dismissed because the jury was unable to reach a verdict on them. (Id., Exs. C-D; Ex. E)
On August 5, 2003, the trial court sentenced petitioner in both criminal cases. Petitioner was sentenced to consecutive three-year terms of imprisonment on six of the aggravated robbery charges, which resulted in a "total sentence of eighteen (18) years in the Department of Corrections." (Id., Ex. C) Petitioner was sentenced to consecutive terms of imprisonment of three years on the aggravated robbery charge and six years on the felonious assault charge stemming from the incident involving victim Clevenger. Petitioner was further sentenced to an additional consecutive three year prison term on the robbery charge involving victim Smith, for a total of twelve (12) years in prison. (Id., Ex. D; Ex. E) The sentences imposed in the two criminal cases were to be served consecutively to one another, which resulted in an aggregate prison sentence of thirty years. (Id., Exs. C-D, E).
With the assistance of new counsel, Petitioner timely appealed to the Ohio Court of Appeals. (Id., Ex. E). Petitioner claimed that: (1) the trial court erred in consolidating the indictments for trial; (2) the firearm specifications should have been dismissed prior to closing argument due to insufficient evidence; (3) he was denied a fair trial as a result of prosecutorial misconduct in closing argument; (4) the trial court erred in denying his motion for judgment of acquittal; (5) the evidence was insufficient to support his convictions on the charges that proceeded to trial; (6) the judgments of conviction were against the manifest weight of the evidence; and (7) the trial court erred when it sua sponte amended the indictments after the jury verdicts. (Id.)
On September 15, 2004, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the trial court's judgment. (Id., Ex. G) Petitioner did not perfect a timely appeal to the Ohio Supreme Court. Four days before the 45-day appeal period was due to expire, the Clerk of the Ohio Supreme Court received a notice of appeal filed pro se by petitioner. (Id., Ex. H; Doc. 8, Ex. A) Petitioner explains that the documents he timely submitted for filing were returned to him for correction of "minor technical 'deficiencies' " after the deadline for filing a timely appeal had passed.
On November 12, 2004, petitioner filed a motion for delayed appeal to the Ohio Supreme Court. (Doc. 7, Exs. H, J). Petitioner claimed that he did not receive a copy of the Court of Appeals' decision until September 24, 2004, which "[took] away the allotted time to file a[n] . . . appeal" to the Ohio Supreme Court; it "require[d] time to seek advi[c]e from the [prison] law library," where access was limited, before he could pursue an appeal to the Ohio Supreme Court; and he did not want to forfeit the opportunity to appeal "due to [his] ignorance of law or its process." (Id., Ex. H) Petitioner indicated that if he were granted a delayed appeal, he would raise essentially the same claims that he had asserted as assignments of error on direct appeal. (Id.) On December 29, 2004, the Ohio Supreme Court denied petitioner's motion for delayed appeal and dismissed the case without opinion. (Id., Ex. I)
II. MAGISTRATE JUDGE'S R&R
The Magistrate Judge found that Petitioner's Motion for Stay and Abeyance should be denied. The Magistrate Judge noted that Petitioner has not alleged that the sentence imposed by the trial court violated his constitutional rights under the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004). The Magistrate Judge explained that even if petitioner had alleged a Blakely violation, this Court would not recommend a stay and abeyance based on the non-exhaustion of such claim. The Magistrate Judge explained that although the Ohio Supreme Court held that in light of Blakely, Ohio's sentencing laws violate the Sixth Amendment, that decision extends only to cases that were still "pending on direct review." State v. Foster, 845 N.E.2d 470, 499 (Ohio). The Magistrate Judge also explained that the Sixth Circuit has held that Blakely and its progeny do not apply retroactively in collateral proceedings after a conviction has become final on direct appeal. The Magistrate Judge concluded that because Petitioner's direct appeal concluded nearly one and one-half years before Foster was decided, and because Blakely may not be applied retroactively in this federal habeas proceeding or any other collateral review proceeding that Petitioner may now attempt to bring, a stay for such a "plainly meritless" claim would not be appropriate.
Next, the Magistrate Judge concluded that the petition should be dismissed with prejudice because Petitioner has waived all of his grounds for relief due to his state procedural default. The Magistrate Judge explained that Petitioner attempted a timely appeal to the Ohio Supreme Court, but failed to comply with certain filing requirements. The Magistrate Judge found that the Clerk of the Ohio Supreme Court clearly and expressly relied on petitioner's failure to comply with the court's procedural rules governing the filing of appeal documents. The Magistrate Judge noted that the Clerk's refusal to file Petitioner's appeal and return of the documents for correction of the "defect" in filing were in accordance with a well-established and regularly-followed practice. The Magistrate Judge also noted that even though Petitioner attempted to obtain a delayed appeal, the Sixth Circuit has held in an analogous case that the Ohio Supreme Court's unexplained entry denying a motion for delayed appeal "constitutes a procedural ruling sufficient to bar federal court review of [a] habeas corpus petition." See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.) (per curiam), cert. denied, 543 U.S. 989 (2004).
The Magistrate Judge concluded that Petitioner has not demonstrated a fundamental miscarriage of justice will occur if his ...