United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge
ORDER VACATING STAY; REPORT AND RECOMMENDATIONS ON
MOTION FOR RELIEF FROM JUDGMENT
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
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.
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.
(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.
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.
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.
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 ...