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Elam v. Buchanan

United States District Court, N.D. Ohio, Eastern Division

July 18, 2019

CHARLES ELAM Petitioner,
v.
TIM BUCHANAN, Warden Respondent.

          REPORT AND RECOMMENDATION

          George J. Limbert, United States Magistrate Judge.

         On September 27, 2018, Petitioner Charles Elam (“Petitioner”), a state prisoner currently incarcerated in the Noble Correctional Institution in Caldwell, Ohio, filed a petition for writ of habeas corpus, pro se, pursuant to 28 U.S.C. § 2254. ECF Dkt. #1. This matter is currently before the undersigned upon Respondent's motion to dismiss the petition because it is procedurally defaulted. ECF Dkt. #10. Respondent filed the instant motion on February 4, 2019. Id.

         On February 25, 2019, Petitioner filed a motion for extension of time until April 5, 2019 to file a response, which the undersigned granted on February 26, 2019. ECF Dkt. #11. On March 25, 2019, Petitioner filed another motion for extension of time until May 31, 2019 to file a response, which the undersigned granted on March 26, 2019. ECF Dkt. #12. On May 21, 2019, Petitioner filed a “Declaration under Penalty of Perjury, ” which consisted of a general objection to Respondent's motion to dismiss and was notarized on May 15, 2019. ECF Dkt. #13. On June 4, 2019, Petitioner filed another motion for an extension of time until June 30, 2019 to file a response, which the undersigned granted. ECF Dkt. # 14.

         On July 1, 2019, Petitioner filed an objection to Respondent's motion to dismiss. ECF Dkt. #16. Respondent filed a reply to Petitioner's objection to the motion to dismiss on July 3, 2019. ECF Dkt. #18.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On April 20, 2015, in the Cuyahoga County Court of Common Pleas, the bench convicted Petitioner of two counts of gross sexual imposition and one count of kidnapping with sexual motivation specification(s). ECF Dkt. #10-1 at 16, 19; see ECF Dkt. #10 at 9. He was found not guilty as to the sexual violent predator specifications charged in two counts of gross sexual imposition and not guilty for one count of gross sexual imposition with sexual violent predator specifications. ECF Dkt. #10-1 at 19; see ECF Dkt. #10 at 9-10. Petitioner was then sentenced to 15 years to life for the kidnapping with sexual motivation specification(s) and 18 months for one of the gross sexual imposition counts, to be served concurrent with the 15 years to life sentence. Petitioner's sentence also includes a five year mandatory post release control, and he was found to be a Tier III sex offender. ECF Dkt. #10-1 at 21.

         Petitioner, through counsel, appealed his convictions with four assignments of error: (1) the State failed to present sufficient evidence to sustain a conviction against Petitioner; (2) Petitioner's convictions were against the manifest weight of evidence; (3) Petitioner was denied a fair trial by the witness' improper comments while testifying; and (4) Petitioner was denied effective assistance of counsel as guaranteed by Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution. ECF Dkt. #10-1 at 104. On September 1, 2016, the Eighth District Court of Appeals reviewed the merits of Petitioner's appeal and affirmed his convictions. Id. at 23, 92-119.

         Subsequently, Petitioner, pro se, executed a verified motion for delayed appeal to the Ohio Supreme Court on November 23, 2016, which has two stamps of being received, first on November 28, 2016 and second on February 8, 2017. ECF Dkt. #10-1 at 151-153. The motion was officially filed on February 8, 2017. Id. at 151. Petitioner also executed a notice of appeal to the Supreme Court of Ohio on December 5, 2016, which was received and filed on February 8, 2017. Id. at 120-122. On April 19, 2017, the Supreme Court of Ohio denied Petitioner's motion for a delayed appeal and dismissed his cause of action. Id. at 186.

         Meanwhile, on November 21, 2016, Petitioner, pro se, executed an application to re-open his appeal pursuant to Ohio App. R. 26(B), which was filed with the Eighth District Court of Appeals on November 29, 2016. ECF Dkt. #10-1 at 187-198. The state filed a response on May 8, 2017. Id. at 199-208. Petitioner then moved to strike the state's response as untimely. Id. at 210. On June 27, 2017, the Court of Appeals denied Petitioner's motion to strike the state's response and denied his application to reopen. Id. at 211-218.

         Subsequently, Petitioner executed his notice of appeal and a motion for delayed appeal on September 11, 2017, both of which were filed on September 15, 2017. Id. at 219-225. On September I, 2016, the Eighth District Court of Appeals overruled Petitioner's assignments of error and affirmed the trial court's judgment. Id. at 226-253.

         On September 27, 2018, Petitioner filed the instant federal petition for writ of habeas corpus under 28 U.S.C. §2254 in this Court in the Northern District of Ohio. ECF Dkt. #1. Respondent filed the instant motion to dismiss the petition at hand on February 4, 2019 because it is procedurally defaulted. ECF Dkt. #10. On July 1, 2019, Petitioner filed an objection to Respondent's motion to dismiss. ECF Dkt. # 16. On July 3, 2019, Respondent filed a response to Petitioner's objection. ECF Dkt. #18.

         II. RELEVANT LAW

         A petitioner must overcome several procedural barriers before a court will review the merits of a petition for a federal writ of habeas corpus. As Justice O'Connor noted in Daniels v. United States, “[p]rocedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim.” 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S. 725, 731 (1993). However, the Supreme Court has also held that it would be in the interests of the parties and the courts for the merits of a petition to be addressed forthwith if it is clear that the applicant does not even raise a colorable federal claim. Granberry v. Greer, 481 U.S. 129, 135 (1987); Prather v. Rees, 822 F.2d 1418, 1421-22 (6th Cir. 1987) (lack of exhaustion was properly excused where petition was plainly meritless, the state had not addressed exhaustion, and disposition of the case would not offend federal-state comity).

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of limitations period for filing a petition for a writ of federal habeas corpus is one year, and it begins to run on the date judgement became final. 28 U.S.C. §2244(d)(1). The AEDPA statute of limitations is not at issue in this case.

         B. Exhaustion of State Remedies

         As a general rule, a state prisoner must exhaust all possible state remedies or have no remaining state remedies before a federal court will review a petition for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004). The exhaustion requirement is satisfied “once the federal claim has been fairly presented to the state courts.” Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). To exhaust a claim, a petitioner must present it “to the state courts under the same theory in which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of rights to a “fair trial” and “due process” do not “fairly present” claims that specific constitutional rights were violated. McMeans, 228 F.3d at 681 (citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984)).

         In order to have fairly presented the substance of each of his federal constitutional claims to the state courts, the petitioner must have given the highest court in the state in which he was convicted a full and fair opportunity to rule on his claims. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A petitioner fairly presents the substance of his federal constitutional claim to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of constitutional law or in terms sufficiently particular to allege the denial of a specific constitutional right; or (4) alleging facts that are obviously within the mainstream of constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004), quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003); see also McMeans, 228 F.3d at 681 (citing Franklin, 811 F.2d at 325).

         A petitioner will not be allowed to present claims never before presented in the state courts, unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal, or that he is actually innocent of the ...


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