United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON JUDGE.
ORDER AND REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge.
a state prisoner, brings this action for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. This matter is now
before the Court on the Petition (Doc. 1), the
Return of Writ (Doc. 26), Petitioner's
Traverse (Doc. 29), and the exhibits of the
parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that this action
request for a stay is DENIED.
and Procedural History
Sixth Circuit summarized the procedural history of the case
In 2000, a jury convicted Smith of two counts of aggravated
burglary, Ohio Rev. Code § 2911.11(A)(1), (2); three
counts of aggravated robbery, Ohio Rev. Code §
2911.01(A)(1), (3); two counts of kidnapping, Ohio Rev. Code
§ 2905.01(A); and one count of theft, Ohio Rev. Code
§ 2913.02. All counts except theft included firearm
specifications. Smith was sentenced to a total term of
sixty-one years of imprisonment, to be served consecutively
to a six-year term of imprisonment for the firearm
specifications. The Ohio Court of Appeals affirmed. State
v. Smith, No. 00-CA-63, 2001 WL 1913854 (Ohio Ct. App.
Dec. 10, 2001).
Smith then filed an application to reopen his appeal,
alleging ineffective assistance of counsel. The Ohio Court of
appeals denied the application, and the Ohio Supreme Court
denied leave to appeal. State v. Smith, 96 Ohio
St.3d 1515 (Ohio 2002).
In 2003, Smith filed a 2254 petition in the district court,
claiming that he was denied his rights to due process and a
fair trial when the trial court overruled his motion to
suppress unfairly suggestive witness identification
testimony. Smith v. Hurley, No. 2:03-cv-580 (S.D.
Ohio Apr. 19, 2004). The district court denied the petition
on the merits. Id.
Smith then, in 2008, filed a petition to vacate or set aside
his judgment, which the trial court denied as untimely. In
2013, Smith filed a motion to vacate or void his sentence,
which the trial court denied as untimely and on res
judicata grounds. See State v. Smith, No.
14-CA-18, 2014 WL 5365511, at *1 (Ohio Ct. App. Oct. 16,
2014). The Ohio Court of Appeals affirmed all issues raised
on appeal with the exception of Smith's third assignment
of error, in which Smith argued that the trial court failed
to inform him of post-release control. Id. at *4.
The Ohio Court of Appeals sustained this assignment of error
and remanded the case to the trial court “for the
limited purpose of holding a sentencing hearing to address
[Smith] in regards to his post[-]release control
sanction.” Id. at *4. In July 2015, on remand,
the trial court orally notified Smith of post-release control
and re-imposed the sentence that Smith had received in 2000.
The Ohio Court of Appeals affirmed, State v.
Blaine-Smith, No. 15-CA-46, 2016 WL 3608634 (Ohio Ct.
App. July 5, 2016), and the Ohio Supreme Court denied leave
to appeal, State v. Smith, 147 Ohio st.3d 1475 (Ohio
In re: Ralph Blaine Smith, No. 16-4699
(6th Cir. May 11, 2017).
Petition presently before this Court asserts that
Petitioner's conviction was based on a constitutionally
improper and unreliable witness identification (claim one);
that the trial court improperly imposed maximum consecutive
terms of incarceration and sentenced him on allied offenses
of similar import (claims two and three); that he was denied
the effective assistance of trial counsel (claim four); that
he was denied his right of allocution at the sentencing
hearing (claim five); that he was convicted in violation of
the Double Jeopardy Clause (claim six); and that he was
denied the effective assistance of counsel at his
re-sentencing hearing (claim seven). Respondent contends that
Petitioner's claims are procedurally defaulted or without
to Stay Proceedings
requests a stay of proceedings to permit him to file a motion
for a new trial in the trial court based on newly discovered
evidence. Motion to Hold Petition in Abeyance (Doc.
2); Traverse (Doc. 29, PageID# 1163-64). Petitioner
asserts that evidence uncovered by a private investigator,
and which purportedly was withheld by the prosecutor,
establishes Petitioner's actual innocence and will have a
substantial impact on the witness identification testimony.
However, Petitioner has not actually submitted this evidence.
Moreover, although Petitioner suggests that he intends to
file a motion for a new trial, he does not explain why he has
not, to date, done so. See Rhines v. Weber, 544 U.S.
269, 273-78 (2005) (a federal district court may stay a
habeas corpus petition containing both exhausted and
unexhausted claims, where a petitioner has “good
cause” for failing to exhaust his claims, where his
claims are potentially meritorious, and where there is no
indication that he engaged in “intentionally dilatory
litigation tactics.”) Under these circumstances,
Petitioner's requests for a stay, Motion to Hold
Petition in Abeyance (Doc. 2); Traverse (Doc.
29, PageID# 1163-64), are DENIED.
contends that Petitioner has procedurally defaulted at least
some of his claims. 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). 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).
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 do so in a way that gives
the state courts a fair opportunity to rule on the federal
law claims being asserted. This means that if the claims are
not presented to the state courts in the manner in which
state law requires, and the state courts therefore do not
decide the claims on their merits, 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
Sixth Circuit, a four-part analysis must be undertaken when
the state argues that a federal habeas claim is 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 rule. Id. Third, it must be decided
whether the state procedural rule 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 determines that a state
procedural requirement was not met, and that the rule is 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
to the fourth part of the Maupin analysis, in order
to establish cause, 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, however, 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.'”
Id. at 452 (quoting Murray, 477 U.S. at
479). That is because, before counsel's ineffectiveness
can 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.
after considering all four factors of the Maupin
test, a court concludes that a procedural default has
occurred, that 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).
claim two, Petitioner asserts that the trial court improperly
imposed maximum consecutive sentences. In claim three,
Petitioner asserts that his convictions constitute allied
offenses of similar import. In claim four, Petitioner
asserts, inter alia, that he was denied the
effective assistance of counsel because his attorney failed
to investigate an alibi defense. See Petitioner's
Traverse (Doc. 29, PageID# 1158). Petitioner raised all
of these issues on direct appeal; however, he failed to raise
these claims in his appeal to the Ohio Supreme Court. See
Memorandum in Support of Jurisdiction (Doc. 26-1,
claim four, Petitioner asserts that he was denied the
effective assistance of trial counsel because his attorney
failed to object to improper witness testimony and
identification procedures, failed to object to the imposition
of maximum consecutive sentences, and failed to object to the
imposition of sentences on allied offenses of similar import
in violation of the Double Jeopardy ...