United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE.
a state prisoner's habeas corpus case under 28 U.S.C.
a 2015 trial in the Common Pleas Court of Mahoning County,
Ohio, a jury convicted the petitioner, Nathaniel Dumas, of
felony murder and aggravated robbery. The trial court imposed
a sentence of between twenty-eight years and life
imprisonment. The Court of Appeals of Ohio affirmed the
convictions and sentence, State v. Dumas,
2015-Ohio-2683 (Ohio App. 2015), and the Ohio Supreme Court
declined to review the case, State v. Dumas, 143
Ohio St.3d 1498 (2015) (table).
litigated an application to reopen his direct appeal and two
postconviction petitions, but the Ohio courts denied relief.
State v. Dumas, 2016-Ohio-4799 (Ohio App. 2016);
State v. Dumas, 2017-Ohio-731 (Ohio App. 2017).
filed the pending § 2254 petition, which raises ten
grounds for relief. (Doc. 1).
Judge Ruiz prepared a Report and Recommendation that
recommended that I deny the petition because all of
petitioner's claims are defaulted. (Doc. 47).
Magistrate Judge concluded that petitioner defaulted his
first six claims for relief because he did not comply with
Ohio Supreme Court Rule of Practice 7.01(A)(5)(c).
(Id., PageID 2744-49).
that rule, an appellant who seeks leave to appeal to the Ohio
Supreme Court after first moving for reconsideration of an
adverse judgment in the Ohio Court of Appeals must file with
the state supreme court: 1) a notice of appeal stating the
date on which the appellate court issued its judgment, the
date on which the appellant moved for reconsideration, and
the date on which the appellate court denied reconsideration;
and 2) a memorandum in support of jurisdiction that lists the
propositions of law that the appellant wishes the state
supreme court to consider. Ohio S.Ct. Prac. R.
petitioner did not file a memorandum in support of
jurisdiction or alert the state supreme court that he had
sought reconsideration in the appellate court, the Magistrate
Judge ruled that petitioner's claims were defaulted.
(Doc. 47, PageID 2749).
Magistrate Judge then concluded that the remaining claims
were defaulted because the Ohio courts denied them on
timeliness grounds. (Id., PageID 2749-51).
initial de novo review of the R&R, I questioned whether
it was appropriate to rely on petitioner's noncompliance
with Rule 7.01(A)(5)(c) as a basis to find procedural
default, given that: 1) the Warden did not raise that
particular default in his return of writ (the Warden instead
argued that petitioner defaulted his first six claims because
his appeal to the Ohio Supreme Court was untimely); and 2)
the Ohio Supreme Court did not cite petitioner's
noncompliance with that Rule as a basis for ruling against
him. (Doc. 58, PageID 2918-19).
therefore ordered the Warden to file a response addressing
review of the Warden's supplemental response and
petitioner's reply (Docs. 59, 60), as well as
petitioner's original and amended objections to the
R&R (Docs. 51, 54), I will overrule the objections, ...