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Owensby v. Bradley

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

May 29, 2018

LASHON OWENSBY, Petitioner,
v.
TIMOTHY BRADLEY, Warden, Pickaway Correctional Institution, Respondent.

          Thomas M. Rose District Judge

          ORDER VACATING STAY; REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF FROM JUDGMENT

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This habeas corpus case is before the Court on Petitioner's Motion for Relief from Judgment filed December 15, 2016 (ECF No. 15). At the time it was filed, Petitioner had an appeal pending before the Sixth Circuit on this Court's Judgment dismissing the Petition (ECF No. 8). The Magistrate Judge recommended postponing consideration of the motion until the appeal was decided, as permitted by Fed.R.Civ.P. 62.1 (Report, ECF No. 16). Neither party objected and the recommendation was adopted (ECF No. 17). The case is now before the Court sua sponte to consider whether the stay should be further extended.

         Procedural History

         The Sixth Circuit denied Owensby a certificate of appealability on his appeal from the judgment. Owensby v. Warden, No. 16-4056 (6th Cir. May 3, 2017)(unreported; copy at ECF No. 18). In the Report recommending delay, the Magistrate Judge had found

Owensby could file a delayed application to reopen his direct appeal to have the Ohio court of appeals decide his claim of ineffective assistance of appellate counsel for asserted failure to notify him of the deadline for filing a petition for post-conviction relief under Ohio Revised Code § 2953.21. See Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014).

(ECF No. 19, PageID 130-31.) After Owensby's appeal to the Sixth Circuit was concluded, this Court order him to file proof by June 1, 2017, that he had filed the delayed 26(B) application, concluding “[i]f Petitioner has not filed such an application, the Magistrate Judge will recommended [sic] that Owensby's Motion for Relief from Judgment be denied.” Id. at PageID 131.

         Owensby had not filed a delayed 26(B) application. Instead he filed in the Montgomery County Court of Common Pleas a Delayed Petition for Post-Conviction Relief under Ohio Revised Code § 2953.23. Although his theory is that his appellate attorney provided ineffective assistance of appellate counsel when he failed to advise Owensby of the deadline for filing a petition for post-conviction relief under Ohio Revised Code § 2953.21, he characterizes his claim as an “independent due process claim of lack of notice by his State appellate counsel . . .in accordance with Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014).” (ECF No. 20, PageID 132.) He disagreed with this Court's opinion that his Gunner claim could be raised in a delayed 26(B), so he “raised his independent due process Gunner and other constitutional claims” in the delayed post-conviction petition. Id. at PageID 133. He asserts rather that his Gunner claim is a post-conviction claim, relying on State v. Guy, 2016-Ohio-619, 2016 Ohio App. LEXIS 538 (6th Dist. Feb. 19, 2016), and State v. Taylor, 2015-Ohio-1314, 2015 Ohio App. LEXIS 1271 (8th Dist. Apr. 2, 2015). Id. at PageID 134-35. Owensby claimed he was the first person to assert the position that a Gunner claim was properly brought in a delayed post-conviction petition. Id. at PageID 135. He requested that this Court extend the stay until the Ohio courts had decided his case. Id. at PageID 136.

         By the time of this filing in June 2017, Judge Mary Katherine Huffman had dismissed Owensby's post-conviction petition as untimely (Decision, Order and Entry, copy at ECF No. 20-2). She noted that Owensby attempted to excuse his late filing by claiming his appellate attorney provided ineffective assistance when he failed to notify Owensby of the deadline. Judge Huffman concluded

A claim of ineffective assistance of appellate counsel is not cognizable in post-conviction proceedings. Rather, the proper procedure to raise issues relating to appellate counsel is to file an application to reopen the appeal under App.R. 26(B). State v. Clark, 2016-0hio-2705. If the court could consider whether his appellate counsel was ineffective for failing to notify him of the time limitation on the filing of any post-conviction claims, Owensby has failed to offer evidence that his appellate counsel was ineffective. Furthermore, Owensby had no right to counsel, nor has he identified any right to advice from his appellate counsel, related to any post-conviction proceedings.

Id. at PageID 160.

         In response to Owensby's request for an extension of the stay, the Magistrate Judge wrote

This Court is in doubt whether a further stay is warranted under Rhines [v. Weber, 544 U.S. 269 (2005)] strictly read. On the other hand, there is no prejudice to the State and the issue is or shortly will be ripe for decision by the Second District Court of Appeals.
Accordingly, further proceedings on the Motion for Relief from Judgment are STAYED pending exhaustion of Petitioner's presently pending appeal to the Second District Court of Appeals and any further appeal to the Ohio Supreme Court. The parties are ORDERED to keep ...

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