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Feely v. Warden, Chillicothe Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

August 23, 2017

JEFFREY A. FEELY, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          JUDGE, MICHAEL H. WATSON

          REPORT AND RECOMMENDATION

          NORAH MCCANN KING UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (Doc. 1) and Petitioner's Brief in Support of the Grounds for Relief Submitted on May 28, 2016 (Doc. 6), the Return of Writ (Doc. 7), Petitioner's “Traverse” in Response to Respondent's Answer to Petitioner's “Writ” (Doc. 10)(“Traverse”), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         Petitioner was indicted by the February 20, 2014, term of the Licking County Grand Jury on nine (9) counts of gross sexual imposition on a person under the age of thirteen, in violation of O.R.C. § 2907.05(A)(4). (Doc. 7-1, PageID# 186). On October 3, 2014, Petitioner entered “Alford Guilty pleas” to the charges against him. (PageID# 196). The trial court imposed an aggregate term of six years' incarceration pursuant to the joint recommendation of the parties. (PageID# 196-97). Petitioner did not file a timely appeal from the judgment of conviction. On March 11, 2015, and proceeding through new counsel, Petitioner filed a Notice of Appeal and Motion for Leave of Court to File Delayed Criminal Appeal and Supporting Affidavits (PageID# 201-02). On April 13, 2015, the appellate court denied that motion for a delayed appeal. Judgment Entry (PageID# 215). On May 15, 2015, the appellate court denied Petitioner's motion for reconsideration. Traverse (Doc. 10, PageID# 332, 334). On November 10, 2015, the Ohio Supreme Court declined jurisdiction of the appeal pursuant to Ohio S.Ct.Prac.R. 7.08(B)(4). Id. (PageID# 236).

         On June 28, 2016, and acting without the assistance of counsel, Petitioner filed the Petition, alleging that he was denied the effective assistance of counsel (claim one); and that the trial court unconstitutionally in making certain factual findings to enhance his sentence, in imposing a mandatory term of post release control, in ordering that Petitioner be required to register as a sexual offender for twenty-five years, and in reviewing the Presentence Investigation Report prior to Petitioner's change of plea (claims two through five).[1] Respondent contends that Petitioner procedurally defaulted his claims or waived them by the entry of his guilty plea.

         Procedural Default

         Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). However, in recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982 (per curiam ) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, “there is a procedural default for purposes of federal habeas. . . .” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).

         The term “procedural default” has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This “requires the petitioner to present ‘the same claim under the same theory' to the state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is that a habeas petitioner must present his claim in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that, if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the merits of the claims, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure” also cannot be resolved on their merits in a federal habeas case - that is, they are “procedurally defaulted.”

         In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim has been waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.” Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).

         Turning to the fourth part of the Maupin analysis, in order to establish cause, the petitioner must show that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause sufficient to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim generally must “‘be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'” Edwards, 529 U.S. at 452 (quoting Murray, 477 U.S. at 479). That is because, before counsel's ineffectiveness will constitute cause, “that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to “satisfy the ‘cause and prejudice' standard with respect to the ineffective-assistance claim itself.” Edwards, 529 U.S. at 450-51.

         If, after considering all four factors of the Maupin test, the court concludes that a procedural default has occurred, the court must not consider the merits of the procedurally defaulted claim unless “review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray, 477 U.S. at 495-96).

         In claim one, Petitioner asserts, inter alia, that he was denied the effective assistance of trial counsel because his attorney failed to investigate, agreed to a sentence that was contrary to law and violated the Double Jeopardy Clause, and failed to challenge a defective indictment or subject the prosecution's case to adversarial testing. In claim two, Petitioner asserts that the trial court violated the Sixth Amendment by making factual findings to enhance Petitioner's sentence. In claim three, Petitioner asserts that the trial court unconstitutionally imposed a term of post release control. He also asserts that O.R.C. § 2967.28 is unconstitutional on its face. In claim four, Petitioner asserts that the requirement in his sentence that he register as a sexual offender for twenty-five years violates the Eighth Amendment and the Double Jeopardy Clause. In claim five, Petitioner asserts that the trial court unconstitutionally reviewed the Presentence Investigation report prior to Petitioner's change of plea.

         Petitioner waived the foregoing claims by the entry of his guilty plea and his agreement to the imposition ...


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