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Russell v. Bunting

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

May 29, 2018

JAMES A. RUSSELL, Petitioner,
v.
JASON BUNTING, Warden, Warren Correctional Institution Respondent.

          Thomas M. Rose, District Judge

          REPORT AND RECOMMENDATIONS ON REMAND

          Michael R. Merz, United States Magistrate Judge

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court on remand from the Sixth Circuit Court of Appeals. Russell v. Bunting, 2018 U.S. App. LEXIS 3920 (6th Cir. Feb. 20, 2018). In its decision of the case, the Sixth Circuit reversed this Court's “decision that Russell procedurally defaulted his claim that appellate counsel provided ineffective assistance by failing to reassert that the aggravated robbery and felony murder convictions should have been merged for sentencing purposes[, and remanded the case] to the district court for initial consideration of the merits of this ineffective-assistance claim.” 2018 U.S. App. LEXIS 3920 at *29. Counsel for both parties have briefed the remanded issue (ECF Nos. 41 & 42).

         At issue on remand is Petitioner's Fifth Ground for Relief, pleaded as follows:

Ground Five: Ineffective assistance of Appellate counsel in violation of the 5th, 6th and 14th amendments.
Supporting Facts: Appellate counsel failed to raise the strongest claims on appeal altering the outcome of the appeals as described in the numerous 26b applications filed in this case which violated this appellant's right to the effective assistance of counsel on appeal which results in a violation of this petitioner's 5th and 14thamendment rights.

(Petition, ECF No. 1, PageID 14.)

         Procedural History of Ground Five

         In the initial Report and Recommendations, the Magistrate Judge found this Ground for Relief “too vague to adjudicate” and recommended it be dismissed for failure to state a claim (Report, ECF No. 20, PageID 2617). On recommittal, the Magistrate Judge read Petitioner's Objections to say that he wanted to raise in habeas every claim of ineffective assistance of appellate counsel he had made in the Ohio R. App. P. 26(B) applications he had filed. There were twelve such omitted assignments of error in three separate 26(B) applications (Supplemental Report, ECF No. 24, PageID 2663-66). The relevant omitted assignment is the first assignment pleaded in the 26(B) application filed May 16, 2012, to wit, “The trial court erred when it failed to merger [sic] counts one and two for sentencing purposes.” (State Court Record, ECF No. 7-2, PageID 1185-93). The Supplemental Report concluded this claim was procedurally defaulted based on how the Second District Court of Appeals disposed of the claim:

The Second District denied the Delayed Application for Reopening on the ground that all of these new assignments of error were barred by the law of the case, since they all could have been raised on his prior appeal. State v. Russell, No. 24443 (2nd Dist. July 13, 2012)(copy at State Court Record, ECF No. 7-2, PageID 1204, et seq., citing Beifuss v. Westerville Bd. Of Educ., 37 Ohio St.3d 187 (1988). Russell offers no authority for the proposition that this decision is in error. The law of the case doctrine is well-recognized in both state and federal law. Its application here by the Second District is an adequate and independent ground of decision and thus bars habeas litigation of these claims.

(Supplemental Report, ECF No. 24, PageID 2664-65.) Russell made no specific objection to this procedural default analysis, but stated in conclusory terms “De novo review of the claims should occur and a writ granted. At the very least a COA should issue on this claim as this petitioner clearly received constitution [sic] ineffective assistance of appellate counsel in violation of the 6th Amendment.” Judge Rose was unpersuaded and dismissed the petition without granting a certificate of appealability except as to as to Ground One[1] (Decision, ECF No. 27).

         Russell moved to expand the certificate of appealability to include his remaining six grounds for relief. As to the twelve sub-grounds of Ground Five, the Sixth Circuit found the first four barred because Russell was not in custody on the judgment from his first trial. It then wrote:

The district court found the remaining sub-claims without merit insofar as the Ohio Court of Appeals reasonably found them to be either barred by the law of the case doctrine or otherwise failing to meet the ineffective-assistance-of-counsel standard set forth in Strickland v. Washington, 466 U.S. 680 (1984). The Ohio Court of Appeals applied Ohio's law of the case doctrine to bar Russell's ineffective-assistance sub-claims that he could have raised, but failed to, in previous appeals. Reasonable jurists could not debate the district court's conclusion that this doctrine is an adequate and independent state rule that forecloses federal habeas relief absent the existence of cause and prejudice, see Coleman v. Thompson, 501 U.S. 722, 729 (1991), which Russell has not shown.

(Russell v. Bunting, No. 16-4022 (6th Cir. Mar. 16, 2017)(Unreported; copy at ECF No. 32, PageID 2706-07).) The court denied the requested expansion and concluded “[t]he case will proceed on the single issue certified for appeal by the district court.” Id. at PageID 2708.

         Appointed counsel, who continues to represent Russell on remand, was able to change the circuit panel's mind. On May 30, 2017, it expanded the certificate of appealability, holding in relevant part:

Russell seeks a COA to argue that his appellate counsel was ineffective for failing reassert his merger argument on his second direct appeal after the Ohio Supreme Court overruled the precedent used by the Ohio Court of Appeals to reject the argument during his first direct appeal. The Ohio Court of Appeals rejected Russell's ineffective assistance claim because it concluded that Russell's merger argument was foreclosed by the law of the case doctrine. The district court concluded that no reasonable jurist could debate whether Russell's claim was procedurally defaulted, because the law of the case doctrine is an adequate and independent state law ground sufficient to trigger a procedural default. However, we agree with Russell that reasonable jurists could debate whether his claim is procedurally defaulted. Generally speaking, Ohio's law of the case doctrine does not apply where “there has been an intervening change of law by a controlling authority[, ]” as there was here. State v. Apanovitch, 64 N.E.3d 429, 438 (Ohio Ct. App. 2016) (internal quotation marks omitted). Reasonable jurists could thus debate whether the Ohio Court of Appeals ...

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