Mobley v. M. Warden

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALPHONSO MOBLEY, JR.,

CASE NO. 2:20-CV-4510

Petitioner, JUDGE JAMES L. GRAHAM

Magistrate Judge Chelsey M. Vascura

v.

WARDEN, NORTHEAST

OHIO CORRECTIONAL CENTER,

Respondent.

ORDER and

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition, as amended (ECF Nos. 1, 10),

Respondent’s Return of Writ (ECF No. 12), Petitioner’s Reply (ECF No. 14), and the exhibits of

the parties. For the reasons that follow, it is RECOMMENDED that this action be

DISMISSED.

Petitioner’s Motion to Expand the Record (ECF No. 13) and Motion to Compel

Respondent to Comply (ECF No. 17) are DENIED.

Petitioner’s Motion for Leave to Supplement the Traverse (ECF No. 16) and Motion for

Leave to Supplement the Traverse and Motion to Expand the Record with the additional portions

of the state record attached (ECF No. 19) are GRANTED.

I. BACKGROUND

Petitioner challenges his May 1, 2017 convictions pursuant to his guilty plea in the

Franklin County Court of Common Pleas on aggravated arson with a firearm specification and

criminal use of an explosive device. The trial court sentenced Petitioner pursuant to the joint

recommendation of the parties to fourteen years’ incarceration to be followed by five years of

mandatory post-release control. (Judgment Entry, ECF No. 11, PAGEID # 200-203.) Petitioner

did not file a timely appeal. More than one year later, on July 6, 2018, he filed a motion for a

delayed appeal. (PAGEID # 206.) On October 25, 2018, the appellate court denied the motion

for a delayed appeal. (PAGEID # 229.)

Meanwhile, on October 25, 2017, Petitioner filed a motion to withdraw his guilty plea.

[Petitioner] averred that his plea was “involuntary and unknowingly made,” the

prosecutor committed misconduct by “misrepresentations in presenting an illusory

promise in an agreement that recommended an illegal sentence,” and his trial

counsel was “ineffective in not evaluating the application of the sentence.”

(Appellant’s Aff. at ¶ 2-4, attached to Mot. to Withdraw Guilty Plea.) The

substance of appellant’s argument in support of his motion to withdraw his guilty

plea is that the convictions of aggravated arson and criminal use of an explosive

device were allied offenses of similar import and that R.C. 2941.25 required the

trial court to merge the two counts for purposes of conviction and sentence.

State v. Mobley, 10th Dist. No. 18AP-23, 2018 WL 4614153 (Ohio Ct. App. Sept. 25, 2018). On

September 25, 2018, the state appellate court affirmed the trial court’s denial of the motion to

withdraw guilty plea. Id. Petitioner apparently did not file an appeal.

He did, however, pursue other state collateral relief. For example, on February 21, 2017,

Petitioner filed a petition for post-conviction relief in the state trial court. (ECF No. 11,

PAGEID # 334.) On June 20, 2018, the trial court denied that action as without merit and barred

under Ohio’s doctrine of res judicata. (PAGEID # 415-16.) Petitioner did not file an appeal.

On January 9, 2019, Petitioner filed a motion for relief from judgment, which action apparently

remains pending in the state trial court. (PAGEID # 459; see Return of Writ, ECF No. 12,

PAGEID # 756.) On September 12, 2018, Petitioner filed a motion for re-sentencing. (PAGEID

# 433.) On November 20, 2018, the trial court denied the motion as without merit and barred by

res judicata. (PAGEID # 452.) On February 27, 2019, the appellate court sua sponte dismissed

Petitioner’s subsequent appeal for failure to comply with Ohio Appellate Rule 18(C) and failure

to file a timely brief. (PAGEID # 458.) On September 3, 2019, Petitioner filed a habeas corpus

petition in the Ohio Supreme Court. (See ECF No. 1, PAGEID # 3; ECF No. 19, PAGEID #

986.) On October 16, 2019, the Ohio Supreme Court sua sponte dismissed that action. (ECF

No. 19, PAGEID # 1012.) On December 17, 2019, the Ohio Supreme Court denied Petitioner’s

motion for reconsideration. (PAGEID # 1013.) On December 18, 2019, Petitioner filed a

second motion to withdraw his guilty plea. (PAGEID # 474.) On June 29, 2020, the trial court

denied the motion as barred under Ohio’s doctrine of res judicata. (PAGEID # 605.)

Petitioner’s appeal apparently remains pending in the state appellate court. (See Return of Writ,

ECF No. 12, PAGEID # 756.) Petitioner also filed a declaratory judgment action in the state trial

court. See Mobley v. O’Donnell, 10th Dist. No. 19AP-440, 2020 WL 703690 (Ohio Ct. App.

Feb. 11, 2020). The Ohio Court of Appeals summarized that action as follows:

{¶ 6} On May 14, 2019, Mobley filed the instant action in the trial court. In his

first through seventh claims, Mobley asked the trial court to issue a series of

declaratory judgments stating that defects in the indictment and errors in

sentencing resulted in breaches of his plea agreement. Mobley also requested that

the trial court declare that defendants engaged in deceptive and/or unconscionable

acts or practices under the Consumer Sales Practices Act, R.C. 1345.01 et seq.

{¶ 7} In addition to declaratory relief, Mobley also sought an injunction and

monetary damages based on the allegations contained in the first seven claims.

For the injunctive relief, Mobley petitioned the trial court to “plac[e] him back in

the position as before entering the [plea agreement] and pleading guilty” by

“reinstituting [the] original indictment.” (Compl. at ¶ 140-41.)

{¶ 8} Mobley also asserted an eighth claim, which he described in his complaint

as “Interfering with Civil Rights; Use of Sham Legal Process; Breach of Oath of

Office.” (Compl. at 39.) According to the allegations contained in this claim,

defendants committed fraud and other wrongdoing during the course of Mobley's

conviction and sentencing that deprived Mobley of his civil rights. Mobley sought

monetary damages for this final claim.

{¶ 9} Defendants moved to dismiss Mobley's complaint for failure to state a claim

pursuant to Civ.R. 12(B)(6). Mobley opposed the motion. In a decision and entry

dated June 27, 2019, the trial court granted defendants' motion and dismissed the

complaint.

{¶ 10} Mobley now appeals the June 27, 2019 judgment, and he assigns the

following errors:

[1.] Judge Phipps abused her discretion when she failed to determine if a

justiciable controversy existed between the plaintiff and each defendant severally

and individually in their personal and official capacity before granting motion to

dismiss pursuant to Civ.R12 (B)(5) in violation of the Due Process Clause of the

14th Amendment to the U.S. Constitution

[2.] Trial court abused its discretion when the court granted motion to dismiss

against Cause of Action VIII., and denied Motion for Summary judgment

pursuant to Civil rule 12(b) (6) finding defendants retain absolute immunity, in

violation of the Due Process Clause & Equal Protection Clause of the U.S.

Constitution 14th Amendment

[3.] Judge Phipps abused its discretion when she granted motion to dismiss

pursuant to Civil Rule 12(b)(6) upon finding Cause of Action VIII. Barred by the

Statute of Limitations.

***

{¶ 16} Here, Mobley argues that a justiciable controversy exists that he can

litigate through a declaratory judgment action. To determine the nature of

Mobley's declaratory judgment action, we must examine the substance of his

arguments and the type of relief requested. See Lingo at ¶ 38 (“Regardless of how

an action is labeled, the substance of the party's arguments and the type of relief

requested determine the nature of the action.”). At their core, Mobley's arguments

are an attack on the validity on his conviction and sentence, and he seeks

injunctive relief that would require the trial court to vacate the final judgment in

his criminal case. Mobley's sole avenues for redress, therefore, remain the

criminal appellate and postconviction review processes. Accordingly, the trial

court did not err in dismissing Mobley's seven claims for declaratory judgment,

and we thus overrule the first assignment of error.

Id. On February 11, 2020, the appellate court affirmed the trial court’s dismissal of Petitioner’s

declaratory judgment action. On July 21, 2020, the Ohio Supreme Court declined to accept

jurisdiction of the appeal. Mobley v. O’Donnell, 159 Ohio St.3d 1445 (Ohio 2020). On

September 15, 2020, the Ohio Supreme Court denied Petitioner’s motion for reconsideration.

Mobley v. O’Donnell, 159 Ohio St.3d 1522 (Ohio 2020).

On April 8, 2020, Petitioner executed this habeas corpus petition. (ECF No. 1, PAGEID

# 44.) He asserts his guilty plea was not knowing, intelligent and voluntary on Counts 1 and 2 of

the Indictment where the trial court expanded the elements of the offenses charged (claims one

and two); that he was denied his right to appeal (claim three); that he was denied fair notice of

the charges (claims four and five); and that his guilty plea was not knowing, intelligent, and

voluntary because the prosecutor breached the terms of his plea agreement by recommending to

destroy or forfeit Petitioner’s property; based on the ineffective assistance of counsel; because

Petitioner did not understand the nature of the charges; and based on the prosecutor’s

suppression of exculpatory evidence1 (claims six through nine). It is the Respondent’s position

that Petitioner’s claims are barred by the one-year statute of limitations, waived by entry of his

guilty plea, and procedurally defaulted.

II. MOTION TO EXPAND RECORD

Petitioner has filed a Motion to Expand the Record pursuant to Rule 7 of the Rules

Governing Section 2254 Cases with documents he has attached to that motion, including

responses he received from certain public records requests he made and responses from his post-

conviction correspondence with the Ohio Public Defender. (ECF No. 13, PAGEID # 827-840.)

According to the Petitioner, these documents will support habeas corpus claims six through nine

and his claim of actual innocence.

Respondent opposes Petitioner’s Motion to Expand the Record. (Response in

Opposition, ECF No. 15.) It is the Respondent’s position that this Court need not review any of

1 Petitioner asserts that the prosecutor failed to disclose facts indicating that only Petitioner and

his co-defendant were present at the time of the offense charged and only Petitioner sustained

any injuries. He complains that his attorney failed to review arson investigation reports

identifying the victim as the New York Community Bank. (ECF No. 10, PAGEID # 162-173.)

Petitioner refers to exhibits he has attached to the Petition and a police and fire incident report in

support. (ECF No. 1, 10, PAGEID # 177.)

the additional documents referred to by the Petitioner in order to resolve this action. Respondent

also argues that Petitioner’s request is precluded by Cullen v. Pinholster, 563 U.S. 170, 182

(2011) (holding that federal habeas review of a state court's decision under 28 U.S.C. §

2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on

the merits). Additionally, Respondent states that Petitioner failed to act diligently in developing

the factual basis for his claims in the state courts and that 28 U.S.C. § 2254(e)(2) thus likewise

bars Petitioner’s request. “Section § 2254(e)(2) continues to have force where § 2254(d)(1) does

not bar federal habeas corpus relief” and, at a minimum, restricts the discretion of a federal

habeas court to consider new evidence when deciding claims that were not adjudicated the

merits. Id. at 185-86.

Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts

indicates that a federal habeas court may direct the parties to supplement the record with

additional materials relevant to the Court's resolution of the Petition:

(a) In General. If the petition is not dismissed, the judge may direct the parties to

expand the record by submitting additional materials relating to the petition. The

judge may require that these materials be authenticated.

(b) Types of Materials. The materials that may be required include letters

predating the filing of the petition, documents, exhibits, and answers under oath to

written interrogatories propounded by the judge. Affidavits may also be submitted

and considered as part of the record.

(c) Review by the Opposing Party. The judge must give the party against whom

the additional materials are offered an opportunity to admit or deny their

correctness.

The decision whether to order an expansion of the record under Rule 7 falls within the

sound discretion of the District Court. Ford v. Seabold, 841 F.2d 677, 691 (6th Cir. 1988). Such

an expansion must be limited by the relevance of the proffered materials to the constitutional

claims presented.

None of the documents referred to by the Petitioner will affect the resolution of his

claims or will assist him in establishing he is entitled to relief. Moreover, the primary issue now

before the Court involves whether Petitioner’s claims are procedurally defaulted. Petitioner’s

public records requests for documents relating to the crimes charged and the responses to

inquiries he made with the Ohio Public Defender do not assist in this determination.

Additionally, although Pinholster does not preclude expansion of the record in support of a claim

of actual innocence—see Johnson v. Warden, Chillicothe Corr. Inst., No. 2:16-cv-985, 2018 WL

9669761, at *4-5 (S.D. Ohio June 26, 2018) (“While neither the Supreme Court nor the Sixth

Circuit have yet resolved the issue, lower courts that have addressed the question have

unanimously held that Pinholster's limitation on new evidence does not apply to claims of actual

innocence, especially when it is used to excuse a procedural default of another claim.”) (citations

omitted)—these documents likewise do not assist Petitioner in establishing his actual innocence.

“[S]uch a claim requires petitioner to support his allegations of constitutional error with new

reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.” Souter v. Jones, 395

F.3d 577, 590 (6th Cir. 2005) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). These

documents do not satify this standard.

Petitioner’s Motion to Expand the Record (ECF No. 13) therefore is DENIED.

III. MOTION TO COMPEL

Petitioner has filed a Motion to Compel requesting that Respondent be ordered to provide

additional portions of the state record involving Petitioner’s complaint for declaratory and

injunctive relief and his state habeas corpus petition in the Ohio Supreme Court. According to

the Petitioner, these documents will show that this action is timely and establish that he has

properly exhausted his claims. However, Petitioner already has attached these documents to his

Motion for Leave to Supplement Traverse (ECF No. 19). Therefore, the Motion to Compel (EF

No. 17) is DENIED.

Petitioner’s Motion for Leave to Supplement the Traverse and Motion to Expand the

Record with the additional portions of the state record he refers to (ECF No. 19), is GRANTED.

IV. PROCEDURAL DEFAULT

A. Standard

Congress has provided that state prisoners who are in custody in violation of the

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of

habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to

protect the constitutional rights of criminal defendants, and in order to prevent needless friction

between the state and federal courts, a state criminal defendant with federal constitutional claims

is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).

If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition

is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4,

6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a

petitioner has failed to exhaust claims but would find those claims barred if later presented to the

state courts, “there is a procedural default for purposes of federal habeas.” Coleman v.

Thompson, 501 U.S. 722, 735 n.1 (1991).

The term “procedural default” has come to describe the situation where a person

convicted of a crime in a state court fails (for whatever reason) to present a particular claim to

the highest court of the State so that the State has a fair chance to correct any errors made in the

course of the trial or the appeal before a federal court intervenes in the state criminal process.

This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts

before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.

2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly

presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives

the state courts a fair opportunity to rule on the federal law claims being asserted. That means

that if the claims are not presented to the state courts in the way in which state law requires, and

the state courts therefore do not decide the claims on their merits, neither may a federal court do

so. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of

federal law which were not resolved on the merits in the state proceeding due to respondent’s

failure to raise them there as required by state procedure” also cannot be resolved on their merits

in a federal habeas case—that is, they are “procedurally defaulted.”

To determine whether procedural default bars a habeas petitioner’s claim, courts in the

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);

see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part

analysis of Maupin). First, the court must determine that there is a state procedural rule that is

applicable to the petitioner’s claim and that the petitioner failed to comply with the rule. Second,

the court must determine whether the state courts actually enforced the state procedural sanction.

Third, the court must determine whether the forfeiture is an adequate and independent state

ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin,

785 F.2d at 138. Finally, if “the court determines that a state procedural rule was not complied

with and that the rule [has] an adequate and independent state ground, then the petitioner” may

still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause

sufficient to excuse the default and (2) that he or she was actually prejudiced by the alleged

constitutional error. Id.

Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner

must show that “some objective factor external to the defense impeded counsel’s efforts to

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).

Constitutionally ineffective counsel may constitute cause to excuse a procedural default.

Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective

assistance of counsel claim generally must “‘be presented to the state courts as an independent

claim before it may be used to establish cause for a procedural default.’” Edwards, 529 U.S. at

452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is because, before counsel’s

ineffectiveness will constitute cause, “that ineffectiveness must itself amount to a violation of the

Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.”

Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted,

petitioner must be able to “satisfy the ‘cause and prejudice’ standard with respect to the

ineffective-assistance claim itself.” Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The

Supreme Court explained the importance of this requirement:

We recognized the inseparability of the exhaustion rule and the procedural-default

doctrine in Coleman: “In the absence of the independent and adequate state

ground doctrine in federal habeas, habeas petitioners would be able to avoid the

exhaustion requirement by defaulting their federal claims in state court. The

independent and adequate state ground doctrine ensures that the States' interest in

correcting their own mistakes is respected in all federal habeas cases.” 501 U.S.,

at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again considered the interplay

between exhaustion and procedural default last Term in O'Sullivan v. Boerckel,

526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter

doctrine was necessary to “‘protect the integrity’ of the federal exhaustion rule.”

Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526

U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The

purposes of the exhaustion requirement, we said, would be utterly defeated if the

prisoner were able to obtain federal habeas review simply by “‘letting the time

run’” so that state remedies were no longer available. Id., at 848, 526 U.S. 838,

119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be no less frustrated were

we to allow federal review to a prisoner who had presented his claim to the state

court, but in such a manner that the state court could not, consistent with its own

procedural rules, have entertained it. In such circumstances, though the prisoner

would have “concededly exhausted his state remedies,” it could hardly be said

that, as comity and federalism require, the State had been given a “fair

‘opportunity to pass upon [his claims].’” Id., at 854, 526 U.S. 838, 119 S.Ct.

1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis added) (quoting Darr

v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).

Edwards, 529 U.S. at 452–53.

If, after considering all four factors of the Maupin test, the court concludes that a

procedural default occurred, it must not consider the procedurally defaulted claim on the merits

unless “review is needed to prevent a fundamental miscarriage of justice, such as when the

petitioner submits new evidence showing that a constitutional violation has probably resulted in

a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.

2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)).

B. Application

All of Petitioner’s claims, being readily apparent from the face of the record, would

properly be raised on direct appeal; however, Petitioner failed to file a timely appeal. The state

appellate court denied his motion for a delayed appeal. Petitioner thereby has procedurally

defaulted all of his claims for review. The Court of Appeals’ decision denying the motion for a

delayed appeal under Ohio Appellate Rule 5(A) constitutes an adequate and independent state

procedural ground under Maupin to deny federal habeas corpus review. See Teitelbaum v.

Turner, No. 2:17-cv-583, 2018 WL 2046456, at *17 (S.D. Ohio May 2, 2018) (citing

Kostenbauder v. Cook, No. 3:12-cv-2581, 2014 WL 992022, at *7 (N.D. Ohio March 13, 2014)

(citing Stone v. Moore, 644 F.3d 342, 348 (6th Cir. 2011)).

To the extent that Petitioner attempted to present any of his claims in subsequent state

collateral proceedings, he did not thereby preserve those issues for review. The Ohio Court of

Appeals affirmed the trial court’s denial of Petitioner’s motion to withdraw his guilty plea as

barred under Ohio’s doctrine of res judicata. Petitioner never filed an appeal of that decision to

the Ohio Supreme Court. Petitioner likewise failed to timely appeal the trial court’s denial of his

application for post-conviction relief. He may now no longer do so, as Ohio does not permit

delayed appeals in post-conviction proceedings. See Fetherolf v. Warden, No. 2:19-cv-00168,

2020 WL 605928, at *24 (S.D. Ohio Feb. 7, 2020) (citing Brown v. Clipper, No. 5:14-cv-1406,

2016 WL 5173331, at *23 (N.D. Ohio March 8, 2016)); Ohio Appellate Rule 5(A). The state

courts were never given the opportunity to enforce this procedural rule due to the nature of

Petitioner's procedural default.

The third Maupin factor, whether the state procedural rule is an adequate and

independent state ground, is also satisfied. Ohio App. R. 5(A)’s inapplicability to

civil cases, and specifically, post-conviction relief proceedings, is firmly

established and regularly followed by Ohio courts. See Carley v. Hudson, 563

F.Supp.2d 760, 776 (N.D. Ohio 2008) (adopting report and recommendation of

Vecchiarelli, M.J.) (citing State v. Williams, 2006 WL 2949011, at *1 (Ohio Ct.

App. 2006) (“Because post-conviction proceedings are civil in nature, App.R.

5(A) may not be used to seek leave from the denial of a post-conviction action

where the time for an appeal as of right as provided in App.R. 4 has passed.”);

State v. Johnson, 2007 WL 2983890, at *1 (Ohio Ct. App. October 15, 2007)

(“[T]he Supreme Court of Ohio has specifically held that App.R. 5(A) is not

available on appeals regarding a post-conviction relief determination.”); State v.

Nichols, 11 Ohio St.3d 40, 43, 463 N.E.2d 375 (Ohio 1984)).

Id. (quoting Brown, 2016 WL 5173331, at *23.)

As cause for his procedural default, and in habeas corpus claim three, Petitioner asserts

that he was denied his right to appeal because the trial court failed to advise him that he had a

right to appointed counsel on appeal. (Traverse, ECF No. 14, PAGEID # 847.)2 Petitioner

complains that his attorney abandoned him without filing a notice of appeal or advising him that

he would not be representing him on appeal. (PAGEID # 848.) However, this claim cannot

constitute cause for Petitioner’s procedural default, because Petitioner never presented this same

issue to the state courts. See, e.g., Holton v. Ohio, No. 2:18-cv-01489, 2019 WL 2303723, at *1

(S.D. Ohio May 30, 2019) (the denial of the effective assistance of counsel cannot constitute

cause for a procedural defaults where the petitioner likewise has procedurally defaulted that

claim) (citing Johnson v. Turner, No. 2:14-cv-01908, 2017 WL 2633188, at *2 (S.D. Ohio June

19, 2017) (citing Edwards v. Carpenter, 529 U.S. 446, 453 (2000)); Burroughs v. Makowski, 411

F.3d 665, 668 (6th Cir. 2005)). As grounds for his motion for a delayed appeal, Petitioner stated

that he did not have access to a law library, was unsure of where to raise his claim of a defective

indictment, and did “not have fingers” on his left hand. (Decision, ECF No. 11, PAGEID # 229-

30.) In short, Petitioner has failed to satisfy his burden to establish cause for his procedural

defaults. See Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (burden on petitioner to

establish cause).

Finally, the record does not reflect that this is “an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is actually innocent”

so as to excuse Petitioner’s otherwise procedurally defaulted claims. Murray, 477 U.S. at 496.

The United States Supreme Court has held that if a habeas petitioner “presents

evidence of innocence so strong that a court cannot have confidence in the

outcome of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error, the petitioner should be allowed to pass through

the gateway and argue the merits of his underlying claims.” Schlup, 513 U.S. at

316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is whether “new

2 Petitioner signed an Entry of Guilty Plea indicating “I understand that I can appeal as a matter

of right from my plea and sentence within thirty days of the filing of my judgment of

conviction.” (ECF No. 11, PAGEID # 199.)

facts raise[ ] sufficient doubt about [the petitioner's] guilt to undermine

confidence in the result of the trial.” Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130

L.Ed.2d 808. To establish actual innocence, “a petitioner must show that it is

more likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.” Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d

808. The Court has noted that “actual innocence means factual innocence, not

mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct.

1604, 140 L.Ed.2d 828 (1998). “To be credible, such a claim requires petitioner to

support his allegations of constitutional error with new reliable evidence-whether

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324, 115

S.Ct. 851, 130 L.Ed.2d 808. The Court counseled however, that the actual

innocence exception should “remain rare” and “only be applied in the

‘extraordinary case.’” Id. at 321, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808.

Souter, 395 F.3d at 589–90 (footnote omitted).

Because Petitioner does not meet these standards, he has procedurally defaulted

all of his claims for review.

V. DISPOSITION

For the reasons set forth above, it is RECOMMENDED that this action be

DISMISSED.

Petitioner’s Motion to Expand the Record (ECF No. 13) and Motion to Compel

Respondent to Comply (ECF No. 17) are DENIED.

Petitioner’s Motion for Leave to Supplement the Traverse (ECF No. 16) and Motion for

Leave to Supplement the Traverse and Motion to Expand the Record with the additional portions

of the state record attached (ECF No. 19) are GRANTED.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further advised

that, if they intend to file an appeal of any adverse decision, they may submit arguments in any

objections filed, regarding whether a certificate of appealability should issue.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE