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Powell-El v. Hooks

United States District Court, S.D. Ohio, Western Division, Dayton

May 9, 2018

CEDRIC E. POWELL-EL, Petitioner,
v.
MARK HOOKS, Warden, Respondent.

          Thomas M. Rose, District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This 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).

         The 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. Fed.R.Civ.P. 72(b)(3).

         Ground One: Ineffective Assistance of Trial Counsel at Resentencing

         In this 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, PageID 898).

         At 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 PageID 405.

         In his 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.

         The 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.

         The 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).

         The 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 724.

[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 ...

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