United States District Court, S.D. Ohio, Western Division, Dayton
CEDRIC E. POWELL-EL, Petitioner,
MARK HOOKS, Warden, Respondent.
M. Rose, District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's Objections (ECF No. 56) to the
Magistrate Judge's Report and Recommendations
recommending the Petition be dismissed with prejudice
(“Report, ” ECF No. 48). Judge Rose has
recommitted the case for reconsideration in light of the
Objections (Recommittal Order, ECF No. 57).
Amended Petition in this case pleads five grounds for relief,
one related to Petitioner's re-sentencing and four
related to his original conviction. Petitioner raises
objections as to the proposed disposition of each Ground for
Relief. It is the duty of the Court to consider de novo each
portion of the Report to which objection is made.
One: Ineffective Assistance of Trial Counsel at
ground for relief, Powell-El claims he received ineffective
assistance of trial counsel at resentencing because his
attorney would not make the arguments he wanted made. The
Warden asserted this claim was barred by Powell-El's
failure to timely appeal to the Ohio Supreme Court from the
Second District's rejection of this claim on direct
appeal. Although Powell-El attempted to show excusing cause
and prejudice, the Report concluded he had not done so and
recommended dismissal of this Ground for Relief (ECF No. 48,
issue is the chronology of events after the Second
District's decision which was filed September 5, 2014
(State Court Record, ECF No. 12, PageID 376, et
seq.). Under Ohio law, Powell-El had forty-five days to
file a notice of appeal to the Ohio Supreme Court. Ohio S.Ct.
Prac. R. 7.01(A)(1). This made the notice of appeal in this
case due October 20, 2014. Powell-El's Notice of Appeal
was stamped “received” the first time in the Ohio
Supreme Court on December 15, 2014 (State Court Record, ECF
No. 12, PageID 390). The next document in the State Court
Record is Powell-El's Motion for Leave to File a Delayed
Appeal, which is stamped both “received” and
“filed” by the Clerk of the Supreme Court on
February 2, 2015. Id. at PageID 392. On the same
date, the Clerk again stamped the Notice of Appeal as both
“received” and “filed.” Id.
at PageID 390. On March 25, 2015, Chief Justice O'Connor
signed and the Clerk filed an Ohio Supreme Court form entry
denying leave to file a delayed appeal. Id. at
Motion for Delayed Appeal, Powell-El recounts that his
appellate attorney did not send him a copy of the Second
District's decision until October 30, 2014, which he
received November 3, 2014 (State Court Record, ECF No. 12,
PageID 393). In his Objections, he claims that once he
“became aware of the appeals courts [sic] decision he
immediately perfected a Memorandum in Support of Jurisdiction
and Notice of Appeal and Notice of Appeal to the Ohio Supreme
Court to be filed in the supreme court clerk's office,
December 15, 2014.” (ECF No. 56, PageID 922.) He points
out that December 15, 2014, is 42 days after he received a
copy of the Second District's decision. Id.
difficulty with Powell-El's position is that he was
already past the 45-day due date for just filing a notice of
appeal; he did not receive the Second District's decision
until November 3, 2014, already more than two weeks past the
deadline. Because he was no longer entitled to appeal without
permission, he should have filed a motion for delayed appeal
immediately. Instead, he waited almost two months after the
Clerk of the Supreme Court rejected his Notice of Appeal to
actually file for a delayed appeal (12/15/2014-01/02/2015).
In other words, after he was already too late to file a
notice of appeal of right, he waited more than an additional
forty-five days to seek a delayed appeal.
Ohio Supreme Court did not accept his excuse for late filing.
Nothing his appellate attorney did interfered with his
ability to file in the Supreme Court. He places blame on the
institutional librarian at his place of incarceration, but he
placed those claims before the Ohio Supreme Court in
connection with the delayed appeal motion (Affidavit, ECF No.
12, PageID 400).
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
[A] federal court may not review federal claims that were
procedurally defaulted in state court-that is, claims that
the state court denied based on an adequate and independent
state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53,
55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an
important “corollary” to the exhaustion
requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct.
1847, 158 L.Ed.2d 659 (2004). “Just as in those cases
in which a state prisoner fails to exhaust state remedies, a
habeas petitioner who has failed to meet the State's
procedural requirements for presenting his federal claims has
deprived the state courts of an opportunity to address”
the merits of “those claims in the first
instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct.
2546, 115 L.Ed.2d 640. The ...