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Sultaana v. Sloan

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

April 4, 2018

HAKEEM SULTAANA, Petitioner,
v.
BRIGHAM SLOAN, et al., Respondents.

          JUDGE DAN AARON POLSTER

          REPORT AND RECOMMENDATION

          William H. Baughman, Jr. United States Magistrate Judge

         Introduction

         Before me by referral[1] in Hakeem Sultaana's pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254[2] is a motion to dismiss the petition filed by the State, [3]which Sultaana has opposed[4] and to which the State has replied.[5] In addition, Sultaana has filed a motion for partial summary judgment[6] to which the State has responded by moving to stay consideration of that motion until after adjudicating its own motion to dismiss.[7] Sultaana has opposed that motion.[8]

         Sultaana is currently incarcerated at the Warren Correctional Institution[9] where he is serving an aggregate sentence of 14 years in prison imposed in 2014 by the Cuyahoga County Common Pleas Court following Sultaana's conviction at a jury trial of various offenses related to his participation in a car title flipping scheme.[10]

         In its motion to dismiss, the State argues that all of Sultaana's grounds for federal habeas relief are procedurally defaulted and/or non-cognizable. For the reasons that follow, I will recommend granting the State's motion to dismiss and thus further recommend dismissing the entire petition with prejudice. In that regard, I recommend that Sultaana's motion for partial summary judgment be denied.[11]

         Facts

         For purposes of the deciding the State's motion, I here incorporate by reference the complete statement of underlying facts as set forth by Magistrate Judge White in his Report and Recommendation recommending granting the State's prior motion to dismiss for failure to exhaust in a prior case.[12]

         As regards the present petition, [13] Sultanna claims some twenty-three grounds for habeas relief.[14] Subsequent to lengthy proceedings, the State, as noted, has moved to dismiss all grounds asserted in the petition as procedurally defaulted and/or non-cognizable.[15]

         Analysis

         A. Relevant law - procedural default

         A claim not adjudicated on the merits by a state court is not subject to AEDPA review.[16] Such a claim is subject to procedural default if a petitioner failed to raise it when state court remedies were still available, the petitioner violated a state procedural rule.[17] The petitioner must afford the state courts “opportunity to pass upon and correct alleged violations of its prisoners' federal rights.”[18] This requires a petitioner to go through “one complete round” of the state's appellate review process, [19] presenting his or her claim to “each appropriate state court.”[20] A petitioner may not seek habeas relief then if he or she does not first “fairly present[] the substance of his [or her] federal habeas corpus claim to the state courts.”[21]

         When a state asserts that a violation of a state procedural rule is the basis for default in a federal habeas proceeding, the Sixth Circuit has long employed a four-part test to determine whether the claim is procedurally defaulted.[22] A petitioner's violation of a state procedural rule will bar federal review if the state procedural rule satisfies the standards set out in the test:[23]

(1) “[T]here must be a state procedure in place that the petitioner failed to follow.”[24]
(2) “[T]he state court must have denied consideration of the petitioner's claim on the ground of the state procedural default.”[25]
(3) “[T]he state procedural rule must be an ‘adequate and independent state ground, '[26] that is both ‘firmly established and regularly followed.'”[27]
(4) The petitioner cannot demonstrate either “cause for the default and actual prejudice as a result of the alleged violation of federal law, ” or “that failure to consider the claims will result in a fundamental miscarriage of justice.”[28]

         In order to show “cause” for the default, the petitioner must show that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.”[29] In order to show “prejudice” for the default, the petitioner must show that the errors at trial “worked to [his or her] actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.”[30]

         B. Application of relevant law

         1. Ground One

         As the State points out, Sultaana's first ground for federal habeas relief - that the Ohio Appeals Court violated his rights to substantive and procedural due process, and to equal protection of the law, by denying him leave to re-open his appeal under Ohio Rule of Appellate Procedure 26(B) - is non-cognizable because Sultaana has no federal right to a collateral appeal.[31] Further, Sultaana never presented this claim to an Ohio court and there is now no procedural mechanism for him to do so. Thus, under Ohio's res judicata doctrine, [32] he is barred from now raising this claim.

         In that regard, and as the State observes, Ohio's res judicata rule is recognized as an adequate and independent state law ground to bar federal habeas review, absent a showing of cause and prejudice.[33] Here, Sultaana has made no showing of cause to excuse this default, or any other default.[34] In particular, Sultaana cannot assign blame to any attorney for his failure to take his claims to the Ohio Supreme Court in a timely manner because, as noted, he had no right to counsel in those proceedings.[35]

         Therefore, I recommend Ground One be dismissed for the reasons stated.

         2. Ground Two

         In this ground, Sultaana maintains that his Sixth Amendment right to have counsel free from conflict of interest was violated when the Ohio court of appeals denied his counsel's motion to withdraw. Once again, the State notes that Sultaana did not appeal the decision of the appellate court that affirmed his conviction, and that no procedure is available to do so now.[36] Moreover, the State also observes that this point was not raised to the Ohio court of appeals in ...


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