Hunt v. Warden, Belmont Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHAD HUNT JR.,

CASE NO. 2:19-CV-4465

Petitioner, JUDGE JAMES L. GRAHAM

Magistrate Judge Kimberly A. Jolson

v.

WARDEN, BELMONT

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On October 21, 2019, the Magistrate Judge issued a Report and Recommendation

pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District

Courts recommending that this action be dismissed. (ECF No. 3.) Petitioner has filed an

Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 6.) Pursuant to 28

U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow,

Petitioner’s Objection (ECF No. 6) is OVERRULED. The Report and Recommendation (ECF

No. 3) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner pleaded guilty in the Jefferson County Court of Common Pleas to one count of

trafficking in drugs and two counts of possession of drugs. He asserts that his guilty plea was

not knowing, intelligent, and voluntary (claim one); that he was denied the effective assistance of

trial counsel (claim two); that he was denied the effective assistance of appellate counsel (claim

three); that the trial court considered inappropriate testimony in imposing sentence (claim four);

and that the trial court failed to address at sentencing the prosecutor’s relationship to one of the

police officers (claim five). The Magistrate Judge recommended dismissal of these claims as

procedurally defaulted or without merit.

Petitioner objects to the recommendations of the Magistrate Judge. Petitioner maintains

that he preserved his claims for review by presenting them to the Ohio Supreme Court. He

asserts the ineffective assistance of counsel as cause for his procedural default. He states that he

did not obtain timely notification of the appellate court’s decision denying his appeal and lacked

the assistance of counsel state collateral proceedings. These arguments, however, do not assist

him.

“[P]etitioner has the burden of showing cause and prejudice to overcome a procedural

default.” Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d

412, 418 (6th Cir. 1999) (internal citation omitted)). A petitioner's pro se status, ignorance of the

law, or ignorance of procedural requirements are insufficient bases to excuse a procedural

default. Bonilla v. Hurley, 370 F.3d 494 (2004). A petitioner must present his on-the-record

claims to the state appellate court on direct appeal in order to preserve them for federal habeas

corpus review. Thus, Petitioner did not preserve his claims by presenting them in the first

instance to the Ohio Supreme Court. See Jordan v. Sheets, No. 2:10-cv-34, 2012 WL 553091, at

*9 (S.D. Ohio Feb. 21, 2012) (“It is well settled that [the] Ohio Supreme Court does not

ordinarily consider claims not raised in the appellate court below.”) (citing Brown v. Voorhies,

No. 2:07-cv-00014, 2009 WL 1878305, at *8 (S.D. Ohio Jan. 26, 2009)). Petitioner also did not

pursue the filing of a petition for post conviction relief. He has waived his various claims of

ineffective assistance of appellate counsel by failing to raise those same claims in Rule 26(B)

proceedings. Therefore, the ineffective assistance of counsel does not constitute cause for his

procedural defaults. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). The denial of the

effective assistance of counsel likewise cannot constitute cause for Petitioner’s procedural

default in failing to raise claims in Rule 26(B) proceedings, where he had no constitutional right

to counsel. See Gerth v. Warden, Allen Oakwood Correctional Institution, 938 F.3d 821, 832

(6th Cir. 2019).

Petitioner states that he did not receive timely notification of the appellate court’s

decision denying his appeal. He provides no further details, however, regarding the time or

manner in which he learned of the appellate court’s decision. An attorney’s failure to timely

notify a criminal defendant of the appellate court’s decision denying an appeal may constitute

cause for a procedural default. Smith v. State of Ohio Dept. of Rehabilitation and Corrections,

463 F.3d 426, 435-36 (6th Cir. 2006). However, the Petitioner must establish that, but for

counsel’s deficient failure, he would have timely appealed. Id. Petitioner has failed to do so

here.

For these reasons and for the reasons detailed in the Magistrate Judge’s Report and

Recommendation, Petitioner’s Objection (ECF No. 6) is OVERRULED. The Report and

Recommendation (ECF No. 3) is ADOPTED and AFFIRMED. This action is hereby

DISMISSED.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts, the Court now considers whether to issue a certificate of appealability. “In

contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal

court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v.

Fisher, 135 S. Ct. 2647, 2650 (2015); 28 U.S.C. 2253(c)(1) (requiring a habeas petitioner to

obtain a certificate of appealability in order to appeal). The petitioner must establish the

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This

standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529

U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make

a substantial showing of the denial of a constitutional right, a petitioner must show “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were ‘adequate to deserve

encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893

n. 4).

Where the Court dismisses a claim on procedural grounds, however, a certificate of

appealability “should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in its procedural

ruling.” Id. Thus, there are two components to determining whether a certificate of appealability

should issue when a claim is dismissed on procedural grounds: “one directed at the underlying

constitutional claims and one directed at the district court's procedural holding.” Id. at 485. The

court may first “resolve the issue whose answer is more apparent from the record and

arguments.” Id.

This Court is not persuaded that reasonable jurists would debate the dismissal of this

action. Therefore, the Court DECLINES to issue a certificate of appealability.

The Court CERTIFIES that the appeal would not be in good faith such that an

application to proceed in forma pauperis on appeal should be DENIED.

The Clerk is DIRECTED to enter FINAL JUDGMENT.

IT IS SO ORDERED.

Date: January 9, 2020

________s/James L. Graham _______

JAMES L. GRAHAM

UNITED STATES DISTRICT JUDGE