United States District Court, S.D. Ohio, Western Division
M. Rose District Judge
SECOND SUPPLEMENTAL REPORT AND
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
habeas corpus case brought, pro se by Petitioner
Joshua Verdell, is before the Court on Verdell's
Objections (ECF No. 6) to the Magistrate Judge's
Supplemental Report and Recommendations recommending the case
be dismissed (the “Supplemental Report, ” ECF No.
5) which reached the same conclusions on reconsideration as
the Magistrate Judge had reached in the original Report and
Recommendations (the “Report, ” ECF No. 2). Judge
Rose has recommitted the case to the Magistrate Judge for
reconsideration in light of the most recent Objections (ECF
makes two habeas claims, a Fifth Amendment claim about the
failure to exclude his incriminating statements and a
Confrontation Clause claim about the medic who was present at
the scene of his arrest. The Report concluded that the
decision of the Second District Court of Appeals on the
self-incrimination claim was not an objectively unreasonable
application of Miranda v. Arizona, 384 U.S. 436
(1966) or Rhode Island v. Innis, 446 U.S. 291
(1980)(ECF No. 2, PageID 12). As to the Confrontation Clause
claim, the Report recommends it be dismissed as procedurally
defaulted because it was not raised on direct appeal (ECF No.
2, PageID 18). Verdell's Objections to the Report were
all procedural and the Supplemental Report recommended that
they be overruled.
now objects that his Confrontation Clause claim should not be
dismissed because “it was never presented on appeal. .
. .” (ECF No. 6, PageID 31.) But that is precisely why
it should be dismissed: a claim which could have been but was
not presented on direct appeal is procedurally defaulted and
may not be the basis of habeas relief. Failure to raise a
constitutional issue at all on direct appeal is procedurally
defaulted. Wainwright v. Sykes, 433 U.S. 72 (1977).
Murray v. Carrier, 477 U.S. 478, 485 (1986);
Mapes v. Coyle, 171 F.3d 408, 413 (6th
Cir. 1999); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994); Leroy v. Marshall, 757
F.2d 94, 97 (6th Cir.), cert denied, 474
U.S. 831 (1985).
objects to the Court's raising the procedural default
issue sua sponte. However, the Sixth Circuit has
held it is not inappropriate for the Court to raise a
procedural default defense sua sponte. Sowell v.
Bradshaw, 372 F.3d 821, 830 (6th Cir. 2004);
Lorraine v. Coyle, 291 F.3d 416 (6th Cir.
2002)(§ 2254 capital case); White v. Mitchell,
431 F.3d 517, 514 (6th Cir. 2005)(capital case);
Elzy v. United States, 205 F.3d 882 (6th
Cir. 2000)(§ 2255 case). Moreover, Petitioner has now
had notice in two Reports and Recommendations of the
Magistrate Judge's intention to rely on procedural
default and has had ample opportunity to show cause and
prejudice, which he has failed to do. His suggestion that
having the state court record filed would overcome the
default is not persuasive -- whether or not the medic's
failure to testify at the suppression hearing was a violation
of the Confrontation Clause is an issue which could have been
raised on direct appeal and was not.
not inappropriate for the Court to raise a procedural default
defense sua sponte. Sowell v. Bradshaw, 372
F.3d 821, 830 (6th Cir. 2004); Lorraine v.
Coyle, 291 F.3d 416 (6th Cir. 2002)(§
2254 capital case); White v. Mitchell, 431 F.3d 517,
514 (6th Cir. 2005)(capital case); Elzy v.
United States, 205 F.3d 882 (6th Cir.
2000)(§ 2255 case).
Objections are without merit and should be overruled. Because
reasonable jurists would not disagree with this conclusion or
the conclusions in the Report and Supplemental Report,
Petitioner should be denied a certificate of appealability
and the Court should certify to the Sixth Circuit that any
appeal would be objectively frivolous and therefore should
not be permitted to proceed in forma pauperis.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. Such objections shall specify
the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. A party may respond to another party's
objections within fourteen days after being served with a
copy thereof. Failure to make objections in ...