United States District Court, S.D. Ohio, Western Division, Cincinnati
Timothy S. Black District Judge.
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE.
the assistance of counsel, Petitioner Abdur Rahim Peters
brought this habeas corpus action under 28 U.S.C. § 2254
to obtain relief from his conviction in the Clermont County
Court of Common Pleas (Petition, ECF No. 1). On Magistrate
Judge Bowman's Order (ECF No. 3), Respondent has filed
the state court record (ECF No. 6) and a Return of Writ (ECF
No. 7). Judge Bowman set a deadline for a reply of twenty-one
days after the answer was filed (ECF No. 3, PageID 32).
However, that time has expired and no reply has been filed.
The magistrate judge reference in the case was transferred to
the undersigned to help balance the magistrate judge workload
in the Western Division of this Court.
1, 2014, the Clermont County grand jury indicted Petitioner
on charges of attempted aggravated murder, attempted murder,
six counts of aggravated robbery, six counts of felonious
assault, and two counts of aggravated burglary, all with
firearm specifications. Pursuant to plea negotiations, Peters
pleaded guilty to two counts of aggravated robbery, three
counts of felonious assault, and one count of aggravated
burglary, all with the firearm specification. He was then
sentenced to an aggregate prison term of twenty-seven years.
The conviction and sentence were affirmed on direct appeal to
the Twelfth District Court of Appeals. State v.
Peters, 2015-Ohio-2013, 2015 Ohio App. LEXIS 1941, 2015
WL 3385040 (12th Dist. May 26, 2015). Peters did
not appeal to the Ohio Supreme Court, but filed a
Post-Conviction Brief in the Common Pleas Court (State Court
Record, ECF No. 6, PageID 147, et seq.). The Common Pleas
Court construed the filing alternatively as a post-conviction
petition under Ohio Revised Code § 2953.21 and a motion
to withdraw guilty plea and denied relief (Decision/Entry,
State Court Record, ECF No. 6, PageID 177, et seq.). The
Twelfth District again affirmed. State v. Peters,
2016-Ohio-5288, 2016 Ohio App. LEXIS 3137 (12th
Dist. Aug. 8, 2016). Again, Petitioner did not appeal to the
Ohio Supreme Court, but filed the instant Petition on
December 21, 2016 (ECF No. 1).
2(d) of the Rules Governing § 2254 Cases requires that
the petition in a habeas corpus case “must
substantially follow either the form appended to these rules
or a form prescribed by a local district-court rule.”
This district does not have a prescribed form, so the
Petition should have been on the standard form, but is not
and, more importantly, does not contain much of the
information required by the standard form. In particular, the
Petition contains no statement of any ground for relief. The
Court reads the Petition to claim that Peters' guilty
plea was not knowing, intelligent, and voluntary because he
received ineffective assistance of trial counsel (Petition,
ECF No. 1, PageID 2). In particular, Peters asserts his trial
attorney did not understand Ohio Revised Code §
2929.14(B)(1)(g) about the imposition of multiple firearm
specification sentences in certain cases. Id. at
Warden claims review on the merits of this ineffective
assistance of trial counsel claim is barred by Peters'
procedural default in failing to present it to the state
courts, specifically by his failure to appeal to the Ohio
Supreme Court from denial of his petition for post-conviction
relief. As noted above, Petitioner has not responded at all
to this defense.
procedural default doctrine in habeas corpus is described by
the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an adequate and
independent state procedural rule, federal habeas review of
the claims is barred unless the prisoner can demonstrate
cause of the default and actual prejudice as a result of the
alleged violation of federal law; or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not
raise on federal habeas a federal constitutional rights claim
he could not raise in state court because of procedural
default. Wainwright v. Sykes, 433 U.S. 72 (1977);
Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent
cause and prejudice, a federal habeas petitioner who fails to
comply with a State's rules of procedure waives his right
to federal habeas corpus review. Boyle v. Million,
201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485
(1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the
"deliberate bypass" standard of Fay v.
Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at
claim may become procedurally defaulted in two ways."
Lovins v. Parker, 712 F.3d 283, 295 (6th
Cir. 2013), quoting Williams v. Anderson, 460 F.3d
789, 806 (6th Cir. 2006). First, a claim is
procedurally defaulted where state-court remedies have been
exhausted within the meaning of § 2254, but where the
last reasoned state-court judgment declines to reach the
merits because of a petitioner's failure to comply with a
state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust
state court remedies, and the remedies are no longer
available at the time the federal petition is filed because
of a state procedural rule. Id.
to raise a constitutional issue at all on direct appeal is
subject to the cause and prejudice standard of Wainwright
v. Sykes, 433 U.S. 72 (1977). Murray v.
Carrier, 477 U.S. 478, 485 (1986); Mapes v.
Coyle, 171 F.3d 408, 413 (6th Cir. 1999);
Rust v. Zent, 17 F.3d 155, 160 (6thCir.
1994); Leroy v. Marshall, 757 F.2d 94, 97
(6th Cir.), cert denied, 474 U.S. 831
(1985). Failure to present an issue to the state supreme
court on discretionary review constitutes procedural default.
O'Sullivan v. Boerckel, 526 U.S. 838, 848
of the record fully supports Respondent's position.
Peters procedurally defaulted on his ineffective assistance
of trial counsel claim by not appealing to the Ohio Supreme