United States District Court, S.D. Ohio, Eastern Division
King
Magistrate Judge.
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE.
On May
15, 2017, the Magistrate Judge denied Petitioner's
motions for the appointment of counsel, for the release of
exculpatory evidence, and for an evidentiary hearing, ECF
Nos. 9 & 13; granted Respondent's Motion to Strike
Petitioner's Notice of Supplement to the Record, ECF No.
15, and recommended that Respondent's motion to dismiss,
ECF No. 8, be granted and that the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 therefore be
dismissed. Order and R&R, ECF No. 17. Petitioner objects
to the Magistrate Judge's Order and Report and
Recommendation ("R&R"). Objection, ECF No. 18.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted
a de novo review. For the reasons that follow,
Petitioner's Objection is OVERRULED.
The
Order and R&R is ADOPTED and AFFIRMED. Petitioner's
motions for the appointment of counsel, for the release of
exculpatory evidence, and for an evidentiary hearing are
DENIED. Respondent's Motion to Strike Petitioner's
Notice of Supplement to the Record is GRANTED.
Respondent's motion to dismiss is GRANTED. This action is
hereby DISMISSED. Furthermore, the Court DECLINES to issue a
certificate of appealability.
Petitioner
challenges his May 2010 convictions, following a jury trial
in the Franklin County Court of Common Pleas, on charges of
abduction and domestic violence. He asserts that the trial
court improperly denied his petition for post-conviction
relief without conducting an evidentiary hearing (claim one);
that the trial court abused its discretion and denied him
access to the courts and due process by denying his post
conviction claims as barred under Ohio's doctrine of
res judicata (claim two); that he was denied due
process and equal protection by the Ohio Supreme Court's
failure to provide him with a transcript of voir
dire proceedings, and that the prosecutor and defense
counsel during voir dire tainted the jury and caused
juror bias (claim three); that he was denied a fair trial by
the prosecutor's use of false and perjured testimony and
that he was denied his right to a speedy trial (claim four);
that he was denied access to the courts, equal protection of
the law, and due process because of the Ohio Supreme
Court's refusal to permit the filing of an untimely
appeal in post-conviction proceedings (claim five); that he
was denied the effective assistance of trial counsel based on
his attorney's failure to conduct pre-trial consultation
and investigation (claim six); that he was denied the right
to a fair trial, due process, and equal protection of the
law, and the right of confrontation, because of the alleged
fraudulent concealment of exculpatory and impeachment
evidence (claim seven); that the evidence is constitutionally
insufficient to sustain his convictions on domestic violence
and abduction (claims eight and nine); and that he was
convicted in violation of the Fourth Amendment (claim ten).
The Magistrate Judge recommended that Petitioner's speedy
trial claim be dismissed as barred by the one-year statute of
limitations provided for under 28 U.S.C. 2244(d); that claims
one, two, three, five, and ten be dismissed as failing to
provide a basis for relief; and that the remainder of
Petitioner's claims be dismissed as procedurally
defaulted.
Petitioner
objects to all of these recommendations, as well as to the
denial of his motions for the appointment of counsel, for the
release of exculpatory evidence, for an evidentiary hearing,
and to supplement the record. Petitioner alleges that his
attorney, Michael A. Prisley, failed to visit or consult with
him for an entire year, resulting in a sham trial. He also
alleges that his appellate attorney, Michael McCarthy,
refused to file a meritorious appellate brief or to obtain a
copy of the transcript of voir dire proceedings,
thereby denying Petitioner meaningful access to the courts in
violation of due process and the equal protection clause.
Petitioner also contends that he was denied the effective
assistance of appellate counsel when his attorney waived oral
argument. Moreover, according to Petitioner, police illegally
entered his home and lied at trial, later provoking attacks
by members of the CRIPS gang against the alleged victim,
Karen Monroe, when she filed complaints against them.
Petitioner maintains that he is the victim of selective
prosecution, that police fabricated the charges against him,
that the trial judge was biased, and that defense counsel
conspired with the State. Petitioner refers to an August 29,
2011, motion that he filed in conjunction with his July 26,
2011, petition for post-conviction relief in regard to these
allegations. Petitioner maintains that he has acted
diligently in pursuing relief and he complains that prison
officials have denied him access to the courts by delaying
his mail and confiscating his legal materials when he was
released from prison. He complains that the Ohio Supreme
Court refused to accept his post-conviction appeal one day
late as a result of prison officials' delay and his
confusion regarding the date of the appellate court's
decision. Petitioner also states that an action filed by him
against prison officials is pending in the United States
Court of Appeals for the Sixth Circuit and that he has filed
a protection order with the Franklin County Court of Common
Pleas. Petitioner specifically objects to the Magistrate
Judge's recommendation of dismissal of his claims as
procedurally defaulted. He submits that he is actually
innocent of the charges against him; he argues that his April
23, 2008, letter to Karen Monroe shows that Monroe lied
because of her mental conditions and out of fear of police
reprisals. He contends that the Magistrate Judge's
recommendations constitute an abuse of discretion and are
clearly erroneous.
As
cause for his procedural defaults, Petitioner represents that
he attempted to file a timely appeal of the appellate
court's September 12, 2013, decision affirming the trial
court's denial of his petition(s) for post-conviction
relief. He has attached a document entitled "Personal
A/C Withdrawal Check Out-Slip" dated October 25, 2013,
for $1.92 to the Clerk of the Supreme Court of Ohio, see
Objection ECF No. 18-1, PAGEID # 1088, in support of his
allegation that he timely submitted his appeal to prison
officials on Friday, October 25, 2013, but that officials
waited until Monday, October 28, 2013, to mail that appeal.
In a letter dated October 29, 2013, the Clerk of the Supreme
Court of Ohio advised Petitioner that the appeal was due no
later than October 28, 2013, and that, because it was
received on October 29, 2013, the Clerk would not file it.
Id., PAGEID # 1089. Petitioner apparently filed a
motion for reconsideration; however, in a letter dated
November 14, 2013, the Clerk of the Supreme Court of Ohio
advised Petitioner that his motion for reconsideration had
not been filed because it was not submitted within the
mandatory forty-five-day time limit for the filing of an
appeal. Id., PAGEID # 1090.
Petitioner
has also attached a copy of another motion that he attempted
to file in the Ohio Supreme Court, namely, Appellant's
Motion to Take Judicial Notice and Order to File Notice of
Appeal and Jurisdictional Memorandum. Id., PAGEID ##
1091-94. In a letter dated December 23, 2013, the Clerk of
the Ohio Supreme Court advised Petitioner that that filing
was being returned to him and had not been filed because he
had failed to comply with the Rules of Practice of the
Supreme Court of Ohio:
The documents you previously submitted did not have a
date-stamped copy of the court of appeals'
judgment entry attached as required by Rule 7.02(D)(1).
Therefore, because you did not attach a copy of the September
19, 2013, judgment entry to your memorandum in support of
jurisdiction, and because your notice of appeal stated that
the decision you were appealing was entered on September 12,
2013, your documents did not meet the requirements for
filing. Accordingly, your documents that were presented for
filing on October 29, 2013, were properly rejected.
To perfect your appeal the Rules of Practice required your
notice of appeal containing the correct date of judgment,
memorandum in support of jurisdiction with date-stamped
copies of the September 12, 2013 opinion and September 19,
2013 judgment entry attached, and your affidavit of indigence
to be presented for filing in the Clerk's Office no later
than November 4, 2013. The enclosed documents cannot be filed
because they do not meet the filing requirements for filing a
new appeal or original action.
Id., PAGEID # 1095. Petitioner states that his
failure to comply with the filing requirements and time
limits for the filing of the appeal was merely a mistake.
Petitioner has also attached what he submits is a fraudulent
affidavit from his former attorney, Michael Prisley, dated
April 29, 2011, see id., PAGEID ## 1096-97, and
documents related to his inmate visitation records, see
id., PAGEID ## 1098-1105.
The
Court has carefully reviewed the entire record but concludes
that the record fails to reflect a basis for relief.
Petitioner procedurally defaulted claims three, four, six,
seven, eight, and nine by failing to raise the issues
presented in those claims in his direct appeal. Petitioner
did claim on direct appeal that he had been denied the
effective assistance of trial counsel because his attorney
failed to consult with him:
Appellant also alleges that his trial counsel was deficient
for failing to meet with him before trial. That failure,
appellant alleges, deprived him of the ability to participate
in developing trial strategy and calling witnesses. Appellant
does not demonstrate how his participation would have changed
trial counsel's trial strategy, nor does he explain what
additional witnesses he would have called and how those
witnesses would have assisted his defense. Absent these
showings, appellant cannot demonstrate that trial
counsel's alleged failure to meet with him caused him any
prejudice. State v. Dennis, 10th Dist. No. 04AP-595,
2005-Ohio-1530, ¶ 21-23 (counsel not ineffective for
failing to confer with defendant before trial or for failing
to call witnesses).
State v. Boddie, No. 10AP-687, 2011 WL 2586717, at
*3 (Ohio App. 10th Dist. June 30, 2011). However, Petitioner
procedurally defaulted this claim by failing to timely appeal
the appellate court's decision to the Ohio Supreme Court.
That appeal was due forty-five days after the appellate
court's June 30, 2011, decision denying Petitioner's
direct appeal. Ohio Supreme Court Rule of Practice
7.01(A)(1)(a)(i); see also Motion to Dismiss, ECF
No. 8-1, PAGEID # 575. The Ohio Supreme Court denied
Petitioner's motion for a delayed appeal and dismissed
the appeal. State v. Boddie,14 ...