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Dumas v. Hooks

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

August 28, 2019

Nathaniel Dumas, Petitioner
v.
Mark Hooks, Warden, Respondent

          ORDER

          JAMES G. CARR SR. U.S. DISTRICT JUDGE.

         This is a state prisoner's habeas corpus case under 28 U.S.C. § 2254.

         Following 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).

         Petitioner 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).

         He then filed the pending § 2254 petition, which raises ten grounds for relief. (Doc. 1).

         Magistrate Judge Ruiz prepared a Report and Recommendation that recommended that I deny the petition because all of petitioner's claims are defaulted. (Doc. 47).

         The 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).

         Under 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. 7.01(A)(5)(c)(i), (ii).

         Because 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).

         The Magistrate Judge then concluded that the remaining claims were defaulted because the Ohio courts denied them on timeliness grounds. (Id., PageID 2749-51).

         On my 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).

         I therefore ordered the Warden to file a response addressing that issue.

         On 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, ...


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