United States District Court, S.D. Ohio, Eastern Division
JAMES L. WHATLEY, JR., Petitioner,
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
OPINION AND ORDER
A. SARGUS, JR. Chief United States District Judge.
March 31, 2017, the Magistrate Judge issued a Report and
Recommendation recommending that Respondent's
Motion to Dismiss be granted, in part, and denied,
in part. (ECF No. 14.) Both the Respondent and Petitioner
have filed an Objection to the Magistrate
Judge's Report and Recommendation (ECF Nos. 15,
18.) Pursuant to 28 U.S.C. § 636(b), this Court has
conducted a de novo review. For the reasons that
follow, Respondent's Objection (ECF No. 15) is
OVERRULED. Petitioner's Objection (ECF No. 18)
is OVERRULED. The Report and Recommendation (ECF No.
14) is ADOPTED and AFFIRIMED. Respondent's Motion to
Dismiss (ECF No. 8) is GRANTED, in part, and DENIED, in
part. Habeas corpus claims four through nine are hereby
DISMISSED. Respondent shall file a Return of Writ addressing
the remaining habeas corpus claims one through three within
twenty-one (21) days. Petitioner may file a response within
fourteen (14) days thereafter.
objects solely to the Magistrate Judge's recommendation
that Respondent be given twenty-one days to file a Return of
Writ in regard to habeas corpus claims one through three.
Petitioner requests that the case be remanded to the
Magistrate Judge for a determination of the merits of such
claims. Petitioner complains that the Court has already
provided Respondent with the opportunity to address the
merits of his claims, and Respondent has failed to do so.
Petitioner further contends that he will suffer prejudice and
is at a disadvantage in view of his pro se
incarcerated status, limited access to legal materials.
Petitioner maintains that the filing of a Return of Writ at
this point in time will only serve to cause further delay.
arguments are not well taken. The filing of a Return of Writ
which addresses the merits of Petitioner's claims will
assist the Court in resolving Petitioner's claims.
Further, the Court is not persuaded that the filing of a
Return of Writ at this juncture will cause inordinate delay
or unduly prejudice the Petitioner, who remains incarcerated
pursuant to presumptively valid convictions in the state
courts. Petitioner's Objection (ECF No. 18)
therefore is OVERRULED.
objects to the Magistrate Judge's recommendation that the
Motion to Dismiss be denied as it pertains to habeas
corpus claims one through three. Respondent argues that
Petitioner has failed to meet his burden of establishing
cause and prejudice for his procedural default in failing to
raise these claims on direct appeal. Respondent maintains
that Petitioner's claim regarding the issuance of
improper jury instructions does not provide a basis for
federal habeas corpus relief. Respondent similarly argues
that Petitioner's claim that the trial court abused its
discretion in imposing a term of life without parole presents
an issue regarding the alleged violation of state law only,
which issue does not warrant relief. Additionally, it is the
position of the Respondent that Petitioner did not present
his claims to this Court in terms of federal constitutional
magnitude and that Petitioner has waived any federal
sentencing issue by failing to present such issue to the
state appellate court.
Petition indicates that Petitioner has phrased his
claims in terms of the alleged violation of federal law.
Petitioner asserts in claim two that the trial court failed
to properly instruct the jury on the requisite mens
rea necessary to establish aggravated murder, in
violation of the Fifth, Sixth, and Fourteenth Amendment.
Petition (Doc. 6, PageID# 56.) In claim three,
Petitioner asserts that the trial court "abused its
discretion by imposing life without parole" in violation
of the Fifth, Sixth, and Fourteenth Amendment to the United
States Constitution. (PageID# 58.) In support, Petitioner
argues that the record does not justify a sentence of life
without parole, and that his conviction was based on
circumstantial evidence and the testimony of self-proclaimed
liars who would do anything to stay out of prison,
(Id.) Further, the Court liberally construes the
pleadings ofapro se prisoner. See Haines v.
Kerner, 404 U.S. 519, 520 (1972)(the allegations of
& pro se complaint are to be held to less stringent
standards than formal pleadings drafted by lawyers).
Therefore, Respondent's argument that Petitioner has
failed to present for this Court's review any claims of
federal constitutional magnitude is not well taken.
maintains that Petitioner's claim that the trial court
abused its discretion fails to present an issue of federal
constitutional magnitude because Petitioner did not
specifically refer, either in these proceedings or in his
application to reopen the appeal pursuant to Ohio Appellate
Rule 26(B), to the Eighth Amendment. However, the state
appellate court recognized that Petitioner based his claim on
the "inchoate argument [that] the penalty is
disproportionate to the offense" (ECF No. 8-1, PageID#
395-96)(referring to State v. Robinson, No.
CT2012-0005, 2013 WL 3387830, at *3 (Ohio App. 5th
Dist. July 1, 2013), which also references federal law,
i.e., Woosley v. United States, 478 F.2d 139, 147
(8th Cir. 1973), discussing the standard for
reversal of a sentence based on a trial court's abuse of
discretion. Such an argument that a sentence, particularly
one that imposes life without the possibility of parole, is
grossly disproportionate to the crime, forms the basis for a
claim under the Eighth Amendment. See, e.g., Ewing v.
California, 538 U.S. 11, 30-31 (2003)(holding that
"Ewing's sentence of 25 years to life in prison,
imposed for the offense of felony grand theft under the three
strikes law, is not grossly disproportionate and therefore
does not violate the Eighth Amendment's prohibition on
cruel and unusual punishments."); Solem v.
Helm, 463 U.S. 277, 288 (1983)("[T]he Eighth
Amendment proscribes grossly disproportionate
punishments")(citations omitted); Barb v.
Clipper, No. 1:ll-cv-0563, 2012 WL 2396134, at *15-16
(N.D. Ohio June 4, 2012)(citing Lockyer v. Andrade,
538 U.S. 63, 72 (2003)(other citations omitted). Moreover,
"[t]he Supreme Court has most frequently found Eighth
Amendment sentencing violations in particular cases which
involved the death penalty, or sentences of life without
parole." Id. (citing Graham v.
Florida, 560 U.S. 48 (2010) (Eighth Amendment prohibits
imposition of life without parole on juvenile who did not
commit homicide); Kennedy v. Louisiana, 554 U.S. 407
(2008) (Eighth Amendment prohibits death penalty for rape of
child where crime did not result in death of victim)).
Petitioner asserts, as cause for his procedural defaults, the
denial of the effective assistance of appellate counsel.
Respondent has failed to address the merits of this claim.
these reasons and for the reasons addressed in the Magistrate
Judge's Report and Recommendation,
Respondent's Objection (ECF No. 15) is
OVERRULED. The Report and
Recommendation (ECF No. 14) is ADOPTED
and AFFTRIMED. Respondent's Motion
to Dismiss (ECF No. 8) is GRANTED, as
to habeas corpus claims four through nine, and
DENIED, as to claims one through three.
Respondent shall file a Return of Writ addressing claims one
through three within twenty-one (21) days. Petitioner may
file a response within fourteen (14) days thereafter.