United States District Court, S.D. Ohio, Western Division, Cincinnati
BARRY J. CAVE, Petitioner,
WARDEN, North Central Correctional Complex, Respondent.
Michael R. Barrett District Judge
REPORT AND RECOMMENDATIONS ON MOTION FOR
Michael R. Merz United States Magistrate Judge
habeas corpus case is before the Court on Petitioner's
Motion for Reconsideration (ECF No. 18); he requests the
Court reconsider, under either Fed.R.Civ.P. 59 or 60, its
decision striking his Objections as untimely. Because Judge
Barrett has already entered judgment in the case, the instant
Motion requires a report and recommendations under
disfavor motions for reconsideration because they consume a
court's scarce time for attention to a matter that has
already been decided. They are subject to limitations based
on that disfavor.
As a general principle, motions for reconsideration are
looked upon with disfavor unless the moving party
demonstrates: (1) a manifest error of law; (2) newly
discovered evidence which was not available previously to the
parties; or (3) intervening authority. Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985),
cert. denied, 476 U.S. 1171, 90 L.Ed.2d 982 (1986).
Meekison v. Ohio Dep't of Rehabilitation &
Correction, 181 F.R.D. 571, 572 (S.D. Ohio
asserts a mistake in calculating the due date for his
Objections. The record reflects that the Report and
Recommendations were filed December 7, 2017. Mr. Cave claims
that the earliest they could have been mailed out was
December 8, 2017, the next day. However, the Clerk's
docketing entry shows that a copy was mailed to Mr. Cave on
the date of filing, December 7, 2017. Fed.R.Civ.P. 5(b)(2)(C)
provides that service by mail is complete upon mailing.
Report notified Mr. Cave that his objections, if any, had to
be filed not later than seventeen days after service (ECF No.
13, PageID 420). Seventeen days from December 7, 2017, is
December 24, 2017. That day was a Sunday and December 25,
2017, was a legal holiday, so the time to file objections was
automatically extended to the next non-holiday, December 26,
2017. Fed.R.Civ.P. 6(a)(1)(C). Because Mr. Cave is
incarcerated, he is entitled to file with this Court by
depositing his filings in the prison mail system. Houston
v. Lack, 487 U.S. 266 (1988); Cook v. Stegall,
295 F.3d 517, 521 (6th Cir. 2002). His Objections
contain a Certificate of Service, but the certificate is
undated (ECF No. 14, PageID 427). Postage was not affixed to
the envelope in which the Objections were mailed until
December 29, 2017. (PageID 428).
to the Motion for Reconsideration are two “Personal A/C
Withdrawal Check Out-Slips”, one for $1.40 and one for
$1.19 (ECF No. 18, PageID 434). Each slip has a place for an
approval signature, but neither is signed. On the other hand,
in a box marked “ship via, ” each slip bear the
purported signature of R. West and shows that the slip was
processed on December 27, 2017. Each slip also bears the
legend “sent 12/19/2017.” Mr. Cave provides no
explanation, from himself or anyone else, of the meaning of
what is included on these slips. Taken together, they do not
show that the Objections were filed in the sense of being
deposited in the prison mail system on or before December 26,
2017, which was the deadline. Therefore the Motion for
Reconsideration is not well taken.
even if the Motion were well taken and the Objections
reinstated as timely, they would not show error in the
judgment of the Court dismissing the Petition. The Report
concluded, as urged by Respondent, that each of
Petitioner's three Grounds for Relief, was barred by his
procedural default in presenting each of those claims to the
Ohio courts. As to Ground One, the Magistrate Judge found the
Ohio Fourth District Court of Appeals had enforced Ohio's
contemporaneous objection rule against Mr. Cave (Report, ECF
No. 13, PageID 411-13). The Report concluded that the Second
Ground for Relief, insufficient evidence, was barred by Mr.
Cave's failure to raise it in the Ohio Supreme Court on
direct appeal. Id. at PageID 414.
Cave's Third Ground for Relief asserted ineffective
assistance of trial counsel in two respects (Sub-claims A and
B) and ineffective assistance of appellate counsel for
failure to raise as an assignment of error the insufficient
evidence to prove trafficking in cocaine in excess of 100
grams (Sub-claim C). The Report concluded Sub-claim A was
without merit, Sub-claim B was defaulted because it was never
presented to the state courts, and Sub-claim C was
procedurally defaulted by Cave's failure to include it in
a timely application to reopen the appeal under Ohio R. App.
P. 26(B) (Report, ECF No. 13, PageID 414-19).
Objections, Cave asserts any procedural default in the state
courts is excused by ineffective assistance of counsel
(Objections, ECF No. 14, PageID 422-26). Cave is certainly
correct in his assertion that a felony defendant such as
himself is entitled to the effective assistance of counsel at
trial. However, the right to appointed counsel extends to the
first appeal of right and no further. Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987); Ross v.
Moffitt, 417 U.S. 600 (1974). Ineffective assistance of
counsel can excuse procedural default only when it occurs in
a proceeding where a defendant is constitutionally entitled
to counsel under the Sixth Amendment. Wainwright v.
Torna, 455 U.S. 586 (1982)(where there is no
constitutional right to counsel there can be no deprivation
of effective counsel); Riggins v. Turner, 1997 U.S.
App. LEXIS 6115, *5 (6th Cir. 1997); Barkley
v. Konteh, 240 F.Supp.2d 708, 714 (N.D. Ohio 2002).
error amounting to ineffective assistance of counsel can
constitute cause to excuse a procedural default. Murray
v. Carrier, 477 U.S. 478, 488 (1985); Howard v.
Bouchard, 405 F.3d 459, 478 (6th Cir. 2005);
Lucas v. O'Dea, 179 F.3d 412, 418
(6th Cir. 1999); Gravley v. Mills, 87
F.3d 779, 785 (6th Cir. 1996). However, Murray
v. Carrier also holds that the exhaustion doctrine
"generally requires that a claim of ineffective
assistance of counsel be presented to the state courts as an
independent claim before it may be used to establish cause
for a procedural default in federal habeas proceedings."
477 U.S. at 489; see also Ewing v. McMackin, 799
F.2d 1143, 1149-50 (6th Cir. 1986). Attorney error
cannot constitute cause where the error caused a petitioner
to default in a proceeding in which he was not
constitutionally entitled to counsel, e.g., a discretionary
appeal proceeding. Coleman v. Thompson, 501 U.S. 722
(1991). "Attorney ignorance or inadvertence is not
'cause' because the attorney is the petitioner's
agent when acting, or failing to act, in furtherance of the
litigation, and the petitioner must 'bear the risk of
attorney error.'" Murray v. Carrier, 477
U.S. 478, 488 (1985), quoted in Coleman v. Thompson,
501 U.S. 722, 753 (1991). The ineffective assistance claim
cannot be presented as cause if it was procedurally defaulted
in the state courts, unless one of the standard excuses for
that procedural default exists, to wit, actual innocence or
cause and prejudice. Edwards v. Carpenter, 529 U.S.
446, 452-54 (2000). Ineffective assistance of counsel on
appeal cannot constitute cause for failure to file a timely
application for reopening of the direct appeal under Ohio R.
App. P. 26(B) since a person is not entitled to counsel for
the reopening. Riggins v. Turner, No. 95-4027, 1997
WL 144214 (6th Cir. March, 1997).
first claims it was ineffective assistance of trial counsel
for his trial attorney to fail to object to Sergeant
Justice's testimony. Ohio law requires that instances of
alleged ineffective assistance of trial counsel that can be
shown from the trial record must be raised on direct appeal
or later be barred from consideration as a matter of res
judicata. State v. Perry,10 Ohio St. 2d 175, 181
(1967); Keener v. Ridenour, 594 F.2d 581
(6th Cir. 1979); State v. Cole, 2 Ohio
St.3d 112 (1982). Cave did not present this as an assignment
of error on direct appeal and it is therefore barred under
the Perry doctrine. Cave's claim that his trial