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Lackey v. Warden, London Correctional Institution

United States District Court, S.D. Ohio, Western Division, Dayton

May 31, 2017

EDDIE M. LACKEY, Petitioner,
v.
WARDEN, London Correctional Institution Respondent.

          Walter Herbert Rice District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         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.)

         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 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 ...


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