United States District Court, S.D. Ohio, Eastern Division
C. SMITH JUDGE
REPORT AND RECOMMENDATION
Elizabeth A. Preston Deavers United States Magistrate Judge
a state prisoner, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. This matter is
before the Court on the Petition, Respondent's Return of
Writ, and the exhibits of the parties. For the reasons that
follow, the Magistrate Judge RECOMMENDS that
this action be DISMISSED.
and Procedural History
Ohio Twelfth District Court of Appeals summarized the facts
and procedural history of the case as follows:
Gene Ivers, the Chief Probation Officer for the Washington
Court House Municipal Court, performed a residence search of
one of his probationers, Terri Ruth. Ivers was accompanied by
a Fayette County deputy during the search. Ruth, who rented
the apartment in which she and her daughter lived, was
subject to residence searches as a term of her probation.
When Ivers arrived to search Ruth's residence, Ruth,
Ruth's daughter, Crockett, and another man were located
in the apartment.
Ivers discovered marijuana on Ruth's dresser in her
bedroom, as well as a white powdery substance, plastic wrap
and baggies, a locked safe, a key, digital scales, lighters,
a burnt spoon, and small baggies of a white product. Inside
the safe, Ivers found a gun, cash, and more drugs. Upon
finding these items, Ivers and the deputy contacted the
Sheriff's Office for aid in completing the search.
Lieutenant Ryan McFarland of the Fayette County Sheriff's
Office responded to Ruth's residence. There, he seized
the safe, gun, drugs, and money, and sent the items to the
Ohio Bureau of Criminal Investigation for testing. The items
in the baggies tested positive for cocaine and heroin, and
the other drugs were identified as oxycodone, dihydrocodeine,
Later, during a recorded phone call originating from the
Fayette County Jail, Crocket and an unnamed woman were heard
conversing about the possible charges against him. The woman
indicated that the police were taking the gun and dusting it
for fingerprints in order to determine who the gun belonged
to. At that point, Crockett is heard stating, “I wiped
that down. I got nothing to do with that.” Crockett was
charged with multiple counts of trafficking in cocaine,
possession of cocaine, trafficking in heroin, possession of
heroin, aggravated trafficking in drugs, possession of
controlled substances, and having weapons under disability.
The matter proceeded to a jury trial after Crockett pled not
guilty to all of the charges.
During trial, Crockett stipulated to his prior conviction of
a drug-related offense, and the trial court admitted a
redacted copy of Crockett's judgment entry of conviction
to show that he was under a disability and not permitted to
possess a gun.
The jury also heard a redacted version of the phone call
between Crockett and the unnamed woman in which Crockett is
heard discussing his claim that he wiped down the gun.
Crockett did not testify, nor did he present any witnesses in
The jury found Crockett guilty of trafficking in, and
possession of, the cocaine and heroin found in the safe, as
well as having weapons under disability. However, the jury
found Crockett not guilty of the other charges specific to
the drugs located outside of the safe that Ivers found in
different locations throughout Ruth's bedroom.
The trial court merged the possession charges into the
trafficking charges, and sentenced Crockett to an aggregate
sentence of nine years on the two trafficking charges and
having weapons under disability. Crockett now appeals his
convictions and sentence[.]
State v. Crockett, 2015 WL 2169268, at *1-2 (Ohio
App. 12th Dist. May 11, 2015). Petitioner asserted on direct
appeal that his convictions were against the manifest weight
of the evidence, that the evidence was constitutionally
insufficient to sustain his convictions, that he was denied
the effective assistance of counsel. See id. On May
1, 2015, the appellate court affirmed the judgment of the
trial court. Id. On August 26, 2015, the Ohio
Supreme Court declined to accept jurisdiction of the appeal.
State v. Crockett, 143 Ohio St.3d 1447 (Ohio 2015).
On July 22, 2015, Petitioner filed an application for
reopening of the appeal pursuant to Ohio Appellate Rule
26(B). (ECF No. 6-1, PageID# 193.) On October 16, 2015, the
appellate court denied the Rule 26(B) application. (PageID#
203.) Petitioner did not file an appeal.
September 26, 2016, Petitioner filed this petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. He
asserts that his convictions are against the manifest weight
of the evidence and that the evidence is constitutionally
insufficient to sustain his convictions (claim one); that he
was denied the effective assistance of counsel (for different
reasons) (claims two and three); and that the trial court
erred when it denied his motion for judgment of acquittal
(claim four). It is the position of the Respondent that
Petitioner's claims are procedurally defaulted or
otherwise fail to provide a basis for relief.
Default: Claim Three
Court turns first to that aspect of Petitioner's third
claim for ineffective assistance of counsel because counsel
failed to object to the admission of his telephone
conversation from the jail. For the reasons that follow, the
Undersigned concludes that this aspect of claim three is
has provided that state prisoners who are in custody in
violation of the Constitution or laws or treaties of the
United States may apply to the federal courts for a writ of
habeas corpus. 28 U.S.C. § 2254(a). In recognition of
the equal obligation of the state courts to protect the
constitutional rights of criminal defendants, and in order to
prevent needless friction between the state and federal
courts, a state criminal defendant with federal
constitutional claims is required to present those claims to
the state courts for consideration. 28 U.S.C. § 2254(b),
(c). If the prisoner fails to do so, but still has an avenue
open to present the claims, then the petition is subject to
dismissal for failure to exhaust state remedies.
Id.; Anderson v. Harless, 459 U.S. 4, 6
(1982) (per curiam) (citing Picard v.
Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner
has failed to exhaust claims but would find those claims
barred if later presented to the state courts, “there
is a procedural default for purposes of federal
habeas.” Coleman v. Thompson, 501 U.S. 722,
735 n.1 (1991).
term “procedural default” has come to describe
the situation where a person convicted of a crime in a state
court fails (for whatever reason) to present a particular
claim to the highest court of the State so that the State has
a fair chance to correct any errors made in the course of the
trial or the appeal before a federal court intervenes in the
state criminal process. This “requires the petitioner
to present ‘the same claim under the same theory'
to the state courts before raising it on federal habeas
review.” Hicks v. Straub, 377 F.3d 538, 552-53
(6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d
494, 497 (6th Cir. 1987)). One of the aspects of
“fairly presenting” a claim to the state courts
is that a habeas petitioner must do so in a way that gives
the state courts a fair opportunity to rule on the federal
law claims being asserted. That means that if the claims are
not presented to the state courts in the way in which state
law requires, and the state courts therefore do not decide
the claims on their merits, neither may a federal court do
so. As the Supreme Court found in Wainwright v.
Sykes, 433 U.S. 72, 87 (1977), “contentions of
federal law which were not resolved on the merits in the
state proceeding due to respondent's failure to raise
them there as required by state procedure” also cannot
be resolved on their merits in a federal habeas case-that is,
they are “procedurally defaulted.”
determine whether procedural default bars a habeas
petitioner's claim, courts in the Sixth Circuit engage in
a four-part test. See Maupin v. Smith, 785 F.2d 135,
138 (6th Cir. 1986); see also Scuba v. Brigano, 259
Fed.Appx. 713, 718 (6th Cir. 2007) (following the four-part
analysis of Maupin). First, the court must determine
that there is a state procedural rule that is applicable to
the petitioner's claim and that the petitioner failed to
comply with the rule. Second, the court must determine
whether the state courts actually enforced the state
procedural sanction. Third, the court must determine whether
the forfeiture is an adequate and independent state ground on
which the state can rely to foreclose review of a federal
constitutional claim. Maupin, 785 F.2d at 138.
Finally, if “the court determines that a state
procedural rule was not complied with and that the rule [has]
an adequate and independent state ground, then the
petitioner” may still obtain review of his or her
claims on the merits if the petitioner establishes: (1) cause
sufficient to excuse the default and (2) that he or she was
actually prejudiced by the alleged constitutional error.
claim three, Petitioner asserts, inter alia, that he
was denied the effective assistance of counsel because his
attorney failed to object to admission of his telephone
conversation as improperly authenticated. Petitioner did not
raise this issue on direct appeal, where he was represented
by new counsel. Moreover, he may now no longer present this
claim to the state courts by virtue of the application of
Ohio's doctrine of res judicata. See State v.
Perry, 10 Ohio St.2d 175 (1967) (holding that claims
must be raised on direct appeal, if possible, or they will be
barred by the doctrine of res judicata); see
also State v. Cole, 2 Ohio St.3d 112 (1982); State
v. Ishmail, 67 Ohio St.2d 16 (1981).
courts have consistently refused, in reliance on the doctrine
of res judicata, to review the merits of
procedurally barred claims. See Cole, 443 N.E.2d at
170-71; Ishmail, 423 N.E.2d at 1070. The Sixth
Circuit has held that Ohio's doctrine of res
judicata is an independent and adequate ground for
denying federal habeas relief. Lundgren v. Mitchell,
440 F.3d 754, 765 (6th Cir. 2006); Coleman v.
Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001);
Seymour v. Walker, 224 F.3d 542, 555 (6th Cir.
2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th
Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332
(6th Cir. 1998). Finally, with respect to the last
Maupin factor, the independence prong, the Court
concludes that Ohio's doctrine of res judicata
in this context does not rely on or otherwise implicate
federal law. Accordingly, the Court is satisfied from its own
review of relevant case law that res judicata rule
articulated in Perry is an adequate and independent
ground for denying relief, and the Maupin factors
are satisfied. Therefore, Petitioner has waived this portion
of claim three for review in these proceedings.
may still secure review of his claim on the merits if he
demonstrates cause for his failure to follow the state
procedural rules, as well as actual prejudice from the
constitutional violations that he alleges.
“‘[C]ause' under the cause and prejudice test
must be something external to the petitioner, something that
cannot fairly be attributed to him[, ] ‘. . . some
objective factor external to the defense [that] impeded. . .
efforts to comply with the State's procedural
rule.'“ Coleman v. Thompson, 501 U.S. 722,
753 (1991) (quoting Murray v. Carrier, 477 U.S. 478,
488 (1986)). It is Petitioner's burden to show cause and
prejudice. Hinkle v. Randle, 271 F.3d 239, 245 (6th
Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d 412,
418 (6th Cir. 1999) (internal citation omitted)). A
petitioner's pro se status, ignorance of the
law, or ignorance of procedural requirements are insufficient
bases to excuse a procedural default. Bonilla v.
Hurley, 370 F.3d 494, 498 (6th Cir. 2004). Instead, in
order to establish cause, a petitioner “must present a
substantial reason that is external to himself and cannot be
fairly attributed to him.” Hartman v. Bagley,
492 F.3d 347, 358 (6th Cir. 2007). Petitioner has offered no
excuses and has thus failed to establish cause for his
United States Supreme Court has also held that a claim of
actual innocence may be raised “to avoid a procedural
bar to the consideration of the merits of [a
petitioner's] constitutional claims.” Schlup v.
Delo, 513 U.S. 298, 326-27 (1995). “[I]n an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default.” Murray, 477 U.S. at 496. In
Schlup, the Supreme Court held that a credible
showing of actual innocence was sufficient to authorize a
federal court in reaching the merits of an otherwise
procedurally-barred habeas petition. Id. at 317.
However, a claim of actual innocence is “‘not
itself a constitutional claim, but instead a gateway through
which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the
merits.'“ Id. at 315 (quoting
Herrera, 506 U.S. at 404).
actual innocence exception to procedural default allows a
petitioner to pursue his constitutional claims if it is
“more likely than not” that new
evidence-i.e., evidence not previously presented at
trial-would allow no reasonable juror to find him guilty
beyond a reasonable doubt. Souter v. Jones, 395 F.3d