United States District Court, S.D. Ohio, Western Division, Dayton
EDDIE M. LACKEY, Petitioner,
WARDEN, London Correctional Institution Respondent.
Herbert Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
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).
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
GROUND 2: Due Process and Equal protection
violated by allowing conviction based on testimony of
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.)
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).
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.
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).
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 ...