United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION
J. Limbert, United States Magistrate Judge.
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.
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. #
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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.
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
Statute of Limitations
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.
Exhaustion of State Remedies
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)).
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).
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 ...