United States District Court, S.D. Ohio, Eastern Division
LEROY J. NELSON, Petitioner,
WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent.
Elizabeth P. Deavers, Chief Magistrate Judge.
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
October 20, 2017, the Magistrate Judge issued a Report
and Recommendation pursuant to rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts recommending that this petition for a writ of habeas
corpus be dismissed. (ECF No. 3.) Petitioner has filed an
Objection to the Magistrate Judge's Report
and Recommendation. (ECF No. 4.) Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner's
Objection (ECF No. 4) is OVERRULED.
The Report and Recommendation (ECF No. 3) is
ADOPTED and AFFIRMED. This
action is hereby DISMISSED.
Court DECLINES to issue a certificate of
pleaded no contest to the charge of possession of cocaine in
the Muskingum County Court of Common Pleas. However, he
asserts that this conviction violates the Fourth Amendment;
that the trial court failed to conduct an adequate plea
colloquy; and that the trial court improperly denied his
motion to withdraw his plea. Petitioner failed to file a
timely appeal to the Ohio Supreme Court. The Magistrate Judge
recommended dismissal of Petitioner's claims as
procedurally defaulted, as the Ohio Supreme Court denied his
motion for a delayed appeal.
objects to the recommendation of the Magistrate Judge.
Petitioner states that he could not timely appeal because he
is not experienced with the Ohio rules of criminal law or
appellate procedure. He obtained assistance from a law clerk
at the prison's law library, but that individual was
placed in segregation with Petitioner's legal papers,
which he had to obtain from the Clerk of the Muskingum County
Court of Common Pleas.
discussed by the Magistrate Judge, plainly, Petitioner
committed a procedural default by failing to file a timely
appeal to the Ohio Supreme Court. See Stone v. Ohio,
No. 16-3126, 2017 WL 3594953, at *2 (6th Cir. April 19, 2017)
("The Ohio Supreme Court's denial of a motion for
leave to file a delayed appeal is an adequate and independent
state-law ground barring federal habeas review[.]")
(citing Bonilla v. Hurley, 370 F.3d 494, 496-97 (6th
Cir. 2004)). However, Petitioner may nonetheless still secure
review of the merits of his claims if he demonstrates cause
for his failure to follow the state procedural rules, as well
as actual prejudice from the constitutional violations that
he alleges. "[Petitioner has the burden of showing cause
and prejudice to overcome a procedural default."
Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001)
(citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th
Cir. 1999) (internal citation omitted)). Courts have
repeatedly held that a prisoner's pro se
incarcerated status, limited access to the prison law
library, or ignorance of the law and state procedural
requirements do not constitute cause sufficient to excuse a
procedural default. See Bonilla v. Hurley, 370 F.3d
494, 498 (6th Cir. 2004) (citing Hannah v. Conley,
49 F.3d 1193, 1197 (6th Cir. 1995)); Crosby v. Warden,
London Correctional Facility, No. 1:12-cv-523, 2013 WL
5963136, at *5 n.2 (S.D. Ohio Nov. 7, 2013). Instead, in
order to establish cause, a petitioner "must present a
substantial reason that is external to himself and cannot be
fairly attributed to him." Hartman v. Bagley,
492 F.3d 347, 358 (6th Cir. 2007). Petitioner has failed to
meet this burden here. He does not allege, and the record
fails to demonstrate, that any objective factor, external to
himself, prevented him from timely filing an appeal with the
Ohio Supreme Court. The fact that an inmate law clerk was
assisting him does not relieve him of the personal
responsibility of complying with the law. See Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (citation
these reasons and for the reasons set forth in the Magistrate
Judge's Report and Recommendation,
Petitioner's Objection (ECF No. 4) is
OVERRULED. The Report and
Recommendation (ECF No. 3) is ADOPTED
and AFFIRMED. This action is hereby
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court considers whether to
issue a certificate of appealability. "In contrast to an
ordinary civil litigant, a state prisoner who seeks a writ of
habeas corpus in federal court holds no automatic right to
appeal from an adverse decision by a district court."
Jordan v. Fisher, ___ U.S. ___,
___, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. §
2253(c)(1) (requiring a habeas petitioner to obtain a
certificate of appealability in order to appeal.)
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner "has made
a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were 'adequate to deserve encouragement
to proceed further.'" Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim
has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling. Id.
Court is not persuaded that reasonable jurists would debate
the dismissal of Petitioner's claims as procedurally
defaulted. Therefore, the Court DECLINES to
issue a certificate of appealability.
Clerk is DIRECTED to enter FI ...