Boles v. Warden, Chillicothe Correctional Institution

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Patrick Boles,

Petitioner, Case No. 1:14cv903

v. Judge Michael R. Barrett

Warden, Chillicothe

Correctional Institution,

Respondent.

ORDER

This matter is before the Court on the Magistrate Judge’s August 21, 2018 Report

and Recommendations (“R&R”) (Doc. 55) and January 30, 2019 R&R (Doc. 67).1

Petitioner and Respondent have filed objections to the August 21, 2018 R&R (Docs. 56,

62); and Petitioner filed objections to the January 30, 2019 R&R (Doc. 68). Petitioner has

also filed a Response to Respondent’s objections (Doc. 63).

I. STANDARD OF REVIEW

When objections are made to a magistrate judge’s report and recommendation on

a nondispositive matter, this Court “shall modify or set aside any portion of the magistrate

judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). The

“clearly erroneous” standard applies to the magistrate judge's factual findings and the

“contrary to law” standard applies to the legal conclusions. Sheppard v. Warden,

1These R&Rs were entered after objections were filed to the Magistrate Judge’s July 16,

2018 Decision and Order granting in part and denying in part Petitioner’s Motion for Discovery

and an Evidentiary Hearing. (Doc. 45). Respondent’s objections are directed to the Magistrate

Judge’s August 21, 2018 R&R, even though substantively, the issues raised in the objections

were only addressed by the Magistrate Judge in his Decision and Order.

Chillicothe Corr., Inst., 1:12-CV-198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013).

Legal conclusions should be modified or set aside if they “contradict or ignore applicable

precepts of law, as found in the Constitution, statutes, or case precedent.” Gandee v.

Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992).

II. BACKGROUND

This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. A jury

convicted Petitioner of four counts of sexual conduct with his niece, D.L. Petitioner brings

fourteen grounds for relief in his Petition. In order to support Grounds One through Ten

and Ground Fourteen, Petitioner seeks to depose his trial attorney, Nicholas Ring; Connie

Lovejoy, who is D.L’s mother; D.L.; and his appellate attorney, Shawn Hooks.

The Magistrate Judge ruled that Petitioner procedurally defaulted Grounds One,

Two, and Three. However, the Magistrate Judge explained that deficient performance by

an attorney in post-conviction proceedings can excuse procedural default of a substantial

claim of ineffective assistance of trial counsel. Therefore, the Magistrate Judge ruled that

Petitioner would be able to depose Attorney Hooks regarding his failure to file a timely

petition for post-conviction relief; and would also be able to depose Attorney Ring to

preserve his testimony in the event Petitioner was later able to show the procedural

default of Grounds One, Two and Three should be excused. However, the Magistrate

Judge ruled that Petitioner’s claims of ineffective assistance of appellate counsel are

procedurally defaulted, and he may not depose Attorney Hooks as to those grounds.

The Magistrate Judge also ruled that Petitioner would be allowed to depose Connie

Lovejoy regarding her knowledge of her daughter’s claims of abuse near or at the time

the abuse occurred, which might be relevant to Petitioner’s claim that the statute of

limitations bars the charges brought against Petitioner.

Next, the Magistrate Judge ruled that Petitioner would be allowed to depose the

victim, D.L., as to the following:

Who was the guidance counselor to whom she reported? When was the

guidance counselor interaction/report made? What was done with the

information that D.L. reported to the guidance counselor? Was D.L. ever

present when her mother and the guidance counselor discussed the alleged

abuse? Was there any discussion between the teacher who referred D.L.

to the guidance counselor and D.L.’s mother in D.L.’s presence, and if so

when and where did those discussions occur?

(Doc. 45, PAGEID# 2083).

Finally, the Magistrate Judge ruled Petitioner’s motion for an evidentiary hearing is

premature; and therefore denied the motion without prejudice.

Petitioner objects to the Magistrate Judge’s rulings only to the extent that the

Magistrate Judge denied the right to depose Attorney Hooks regarding ineffective

assistance of appellate counsel (Grounds Four, Five, Six, Seven and Eight). Petitioner

argues that cause exists to excuse the procedural default of that claim. Specifically,

Petitioner explains that he could not file his own timely motion to reopen his direct appeal

to raise ineffective assistance of appellate counsel claims pursuant to Rule 26(B) of the

Ohio Rules of Appellate Procedure, since he was represented by that same appellate

counsel for at least sixty days after the mandatory ninety-day filing deadline.

Respondent objects to the Magistrate Judge’s ruling to the extent that it permits

any of the proposed discovery. Respondent explains that testimony from D.L., her mother

and Attorney Ring is unnecessary because Petitioner conceded in his Rule 26(B)

application that his ineffective assistance of trial counsel claims were record-based claims

which should have been raised on direct appeal. In addition, Respondent argues that

Petitioner’s ineffective assistance of trial counsel claims have been procedurally defaulted

and Petitioner cannot establish cause for the default.

III. ANALYSIS

“[U]nlike the usual civil litigant in federal court, [a habeas petitioner] is not entitled

to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117

S.Ct. 1793, 138 L.Ed.2d 97 (1997); see also Johnson v. Mitchell, 585 F.3d 923, 924 (6th

Cir. 2009). Instead, Rule 6 of the Rules Governing Section 2254 Cases in the United

States District Courts provides that “[a] judge may, for good cause, authorize a party to

conduct discovery under the Federal Rules of Civil Procedure[.]” “Good cause” for exists

only “where specific allegations before the court show reason to believe that the petitioner

may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to

relief.” Bracy, 520 U.S. at 908-909, 117 S.Ct. 1793 (quoting Harris v. Nelson, 394 U.S.

286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969)).

“There is no clear entitlement to discovery in support of procedurally defaulted

habeas claims.” Sample v. Colson, 958 F. Supp. 2d 865, 888 (W.D. Tenn. 2013)

(collecting cases). However, “a habeas petitioner may use a Habeas Rule 6 discovery

motion to obtain evidence relevant to excusing procedural default.” Id. (citing Payne v.

Bell, 89 F. Supp. 2d 967, 974 (W.D. Tenn. 2000)); see also Cunningham v. Hudson, 756

F.3d 477, 487 n.4 (6th Cir. 2014).

A. Grounds One, Two and Three: Ineffective assistance of trial counsel

Petitioner seeks discovery on his claim in Ground One: that he received ineffective

assistance of trial counsel when trial counsel failed to object when the State elicited

testimony that the statute of limitations was twenty years. Petitioner also seeks discovery

on Ground Two: that he received ineffective assistance of trial counsel when counsel

failed to raise the ex post facto violation based on the statutory change in the statute of

limitations. Finally, Petitioner seeks discovery on Ground Three: that he received

ineffective assistance of trial counsel when counsel failed to conduct a reasonable

investigation and prepare a crucial witness for trial.

The Magistrate Judge permitted the depositions of D.L. and Connie Lovejoy—who

is D.L.’s mother—to be taken in order to support Petitioner’s claims in Ground One. As

Respondent points out, Attorney Ring questioned D.L. extensively at trial about when and

to whom she disclosed the sexual abuse. D.L. testified that when she revealed the sexual

abuse to her mother a year or two after it occurred, her mother did not take her to the

police, the hospital, a doctor, or a counselor. D.L. later revealed the abuse to her

economics teacher, who testified that he and a guidance counselor were informed by D.L.

about the abuse in the 1996-1997 school year.

The Court finds that good cause does not exist for the depositions of D.L or her

mother. First, Petitioner’s attorney has already had an opportunity to cross-examine

these witnesses on the same issues. See United States ex rel. Blankenship, 59

F.Supp.2d 736, 739 (N.D.Ill. 1999) (finding petitioner had not shown good cause to

depose witness who had been cross-examined on same issue at state evidentiary

hearing). In addition, any disclosure of sexual abuse to D.L.’s mother would not be

relevant because notification to a parent does not end the tolling of the statute. See Ohio

Rev. Code § 2901.13(J)(2).2 Next, while the notification to the guidance counselor during

2The statute provides:

the 1996-1997 school year may have triggered the statute of limitations, any evidence of

discussions after that time period would not have any bearing on the statute of limitations

issue. Finally, Ohio courts have uniformly upheld the constitutionality of the retroactive

extension of the statute of limitations. Pluhar v. Cook, No. 1:16 CV 2051, 2018 WL

7575039, at *19 (N.D. Ohio Sept. 13, 2018) (citing cases). Therefore, there is not a

reasonable probability that if trial counsel had raised an ex post facto challenge, the result

of the proceeding would have been different.

Moreover, it appears that Petitioner has procedurally defaulted all three of his

claims that trial counsel was ineffective. As the Magistrate Judge explained, Petitioner

cannot overcome this default through an ineffective assistance of appellate counsel claim

because Petitioner has also procedurally defaulted his ineffective assistance of appellate

counsel claim. Accord Edwards v. Carpenter, 529 U.S. 446, 450-51, 120 S.Ct. 1587, 146

L.Ed.2d 518 (2000) (“[A] procedurally defaulted ineffective-assistance-of-counsel claim

can serve as cause to excuse the procedural default of another habeas claim only if the

habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to the

(J) The period of limitation for a violation of any provision of Title XXIX of the

Revised Code that involves a physical or mental wound, injury, disability, or

condition of a nature that reasonably indicates abuse or neglect of a child under

eighteen years of age or of a child with a developmental disability or physical

impairment under twenty-one years of age shall not begin to run until either of the

following occurs:

(1) The victim of the offense reaches the age of majority.

(2) A public children services agency, or a municipal or county peace officer

that is not the parent or guardian of the child, in the county in which the child

resides or in which the abuse or neglect is occurring or has occurred has been

notified that abuse or neglect is known, suspected, or believed to have

occurred.

Ohio Rev. Code § 2901.13.

ineffective-assistance claim itself.”). However, the Magistrate Judge permitted the

deposition of Attorney Ring so that his testimony would be preserved in the event that the

Court found cause to excuse the procedural default of the claims in Grounds One, Two

and Three. Specifically, the Magistrate Judge explained that Petitioner could establish

ineffective assistance of post-conviction counsel as cause to excuse the procedural

default of Petitioner’s ineffective assistance of trial counsel claims in Grounds One, Two

and Three.

In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991),

the Supreme Court explained that there is no constitutional right to counsel in state post-

conviction proceedings, and therefore, ineffective assistance in those proceedings does

not qualify as cause to excuse a procedural default. Davila v. Davis, 137 S. Ct. 2058,

2062, 198 L. Ed. 2d 603 (2017). However, as the Supreme Court has explained:

In Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012),

and Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044

(2013), this Court announced a narrow exception to Coleman’s general rule.

That exception treats ineffective assistance by a prisoner's state

postconviction counsel as cause to overcome the default of a single claim—

ineffective assistance of trial counsel—in a single context—where the State

effectively requires a defendant to bring that claim in state postconviction

proceedings rather than on direct appeal.

Id. The rationale for this narrow exception is that “the collateral proceeding is in many

ways the equivalent of a prisoner's direct appeal as to the ineffective assistance claim.”

Martinez, 132 S.Ct. at 1317.

In the time since the Magistrate Judge’s ruling on this issue, the Sixth Circuit has

has held that Trevino and its modification of Martinez applies in Ohio in cases where a

petitioner's ineffective assistance of trial counsel claim relies on evidence outside the trial

record. White v. Warden, Ross Corr. Inst., 940 F.3d 270, 277 (6th Cir. 2019). Petitioner

attempts to bring his claims within this exception provided by Martinez/Trevino by

explaining that appellate counsel, Shawn Hooks, abandoned Petitioner by failing to file a

timely post-conviction petition even though he was paid to do so.

However, as Respondent points out, even if Petitioner’s ineffective assistance of

trial counsel claims based on evidence outside the record may be procedurally defaulted

based on the filing of an untimely state-court habeas petition, Petitioner’s ineffective

assistance of counsel claims have been defaulted for a different reason. Petitioner failed

to raise these claims in his first state habeas petition filed pursuant to Ohio Revised Code

§ 2953.21.3 Under Ohio law, res judicata bars Petitioner from raising those claims that

were not presented in this petition because they could have been raised at that time. Jells

v. Mitchell, 538 F.3d 478, 502 (6th Cir. 2008) (citing State ex rel. Rash v. Jackson, 102

Ohio St.3d 145, 807 N.E.2d 344, 346 (Ohio 2004)).

While Petitioner did raise an ineffective assistance claim based upon trial counsel’s

failure to conduct a reasonable investigation and prepare a crucial witness for trial in his

postconviction petition, the state court of appeals found that “the issue is barred by res

judicata as appellant asserted the same issue in his first PCR petition which the trial court

denied and which denial appellant did not appeal.” State v. Boles, 2017 WL 878687, *4

3Petitioner disputes that he failed to raise the claims of ineffective assistance of trial

counsel regarding the statute of limitations or the ex post facto issue in his state postconviction

petition. Petitioner states that in his state postconviction petition he argued: “that the failure of

trial counsel prejudiced the Petitioner because had counsel prepared he would have been able

to prove ‘counts one, two, three and four were barred by the statute of limitations contained in

R.C. 2901.13 that was in effect at the time of the alleged commission of the offenses.’” (Doc. 63,

PAGEID# 2207) (quoting Doc. 28, PAGEID# 1621). While this quoted language does appear in

the state postconviction petition, it appears in the statement of facts section of the petition.

Petitioner clearly stated that his sole ground for relief was that “Petitioner’s rights guaranteed by

the Sixth and Fourteenth Amendments to the United States Constitution were violated because

Petitioner received the ineffective assistance of counsel at trial by failing to conduct a

reasonable investigation and prepare for trial.” (Doc. 28, PAGEID# 1621).

(Ohio Ct. App. Mar. 6, 2017) (citing State v. Lester, No. L–98–1086, 1999 WL 173658

(Ohio Ct. App. Mar. 31, 1999); State v. Britton, No. L–97–1345, 1998 WL 666768 (Ohio

Ct. App. Sept. 30, 1998)). Therefore, even if this ineffective assistance of counsel claim

was not required to be raised on direct appeal, he defaulted his claim by failing to give

the state courts full opportunity to resolve the issue. Accord Fetherolf v. Warden,

Chillicothe Corr. Inst., No. 2:19-CV-00168, 2020 WL 1933578, at *5 (S.D. Ohio Apr. 22,

2020) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732, 144 L. Ed.

2d 1 (1999)).

Because the Martinez/Trevino exception does not provide an avenue for

demonstrating cause for these other types of procedural default, the Court finds good

cause does not exist for the deposition of Attorney Ring regarding his representation of

Petitioner at trial. For the same reasons, good cause does not exist for the deposition of

Attorney Hooks concerning his alleged failure to pursue post-conviction relief.

Accordingly, Respondent’s objections are sustained; and Petitioner’s Motion for

Discovery is DENIED as to Grounds One, Two and Three.

B. Ineffective assistance of appellate counsel (Grounds Four, Five, Six,

Seven and Eight)

The Magistrate Judge found that the claims in Grounds Four, Five, Six, Seven and

Eight were procedurally defaulted as a result of the untimely filing of Petitioner’s

application under Ohio Rule 26(B) of the Ohio Rules of Appellate Procedure. Therefore,

the Magistrate Judge ruled that Petitioner was not permitted to depose Attorney Hooks

on these claims.

Petitioner objects and explains he was prevented from filing a timely claim of

ineffective assistance of appellate counsel under Ohio Rule 26(B) because Attorney

Hooks remained appellate counsel through the Ohio Supreme Court’s Entry declining

jurisdiction, which was filed on April 23, 2014. Petitioner points out that this was more

than sixty days after the Ohio Rule 26(B) clock had run on February 23, 2014. Petitioner

explains that because Petitioner was represented by counsel, he was not permitted to file

the Ohio Rule 26(B) application pro se.

In Ohio, claims of ineffective assistance of appellate counsel must be raised in a

delayed motion for reconsideration in the state appellate courts before asserting them in

the federal courts. See Ohio R. App. P. 26(B); Coleman v. Mitchell, 244 F.3d 533, 539

(6th Cir. 2001) (citing State v. Murnahan, 63 Ohio St.3d 60 (1992)). As the Magistrate

Judge explained, the state appellate court refused to consider the merits of Petitioner's

claims based upon his failure to establish good cause for his untimely Rule 26(B)

application; and as a consequence, the claims are procedurally defaulted. Accord Parker

v. Bagley, 543 F.3d 859, 862 (6th Cir. 2008) (explaining that in non-capital cases,

untimeliness of a Ohio Rule 26(B) application to reopen was an adequate and

independent state procedural ground).

The exception found in Martinez and Trevino cannot be used to supply cause to

excuse the procedural default of these claims. The Supreme Court has specifically

declined to extend Martinez and Trevino to procedurally defaulted claims of ineffective

assistance of appellate counsel. Davila v. Davis, 137 S. Ct. 2058, 2065, 198 L. Ed. 2d

603 (2017).

The remainder of Petitioner’s arguments were addressed and rejected by the

Magistrate Judge. The Court finds no error in the Magistrate Judge’s conclusion that

Hooks continued representation of Petitioner during his direct appeal cannot serve as

cause for the procedural default of his ineffective assistance of appellate counsel claims.

As Sixth Circuit precedent makes clear, “counsel's failures in connection with a Rule 26(B)

application cannot serve as cause to excuse a procedural default because there is no

right to counsel at that stage.” McClain v. Kelly, 631 F. App'x 422, 437 (6th Cir. 2015)

(collecting cases); but see Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014) (the failure of

appellate counsel to inform his client that limitations period for filing postconviction relief

under Ohio Revised Code § 2953.21 begins with the filing of the record on appeal

excused a procedural default).4 Therefore, information provided by Hooks in a deposition

about his representation of Petitioner would have no bearing on the filing of the Rule 26(B)

application, which is “an independent, collateral proceeding.” McClain, 631 F. App’x 430

(quoting Wilson v. Hurley, 382 Fed.Appx. 471, 474 (6th Cir. 2010)).

Accordingly, Petitioner’s objections are overruled; and Petitioner’s Motion for

Discovery is DENIED as to Grounds Four, Five, Six, Seven and Eight.

IV. CONCLUSION

Having reviewed this matter de novo in accordance with Rule 72 of the Federal

Rules of Civil Procedure, the Court finds the Magistrate Judge’s August 21, 2018 R&R

(Doc. 55) and January 30, 2019 R&R (Doc. 67) to be thorough, well-reasoned, and

correct. Accordingly, the Magistrate Judge’s August 21, 2018 R&R (Doc. 55) and January

30, 2019 R&R (Doc. 67) are ADOPTED in their entirety, and Petitioner’s Objections

(Docs. 62, 68) are OVERRULED. To the extent that Respondent objects to the

Magistrate Judge’s July 16, 2018 Decision and Order granting in part and denying in part

4In McClain, the Sixth Circuit acknowledged parallels between Ohio Revised Code §

2953.21 and Rule 26(B), but held that based on Martinez and its own precedent it could not

expand its decision in Gunner to Rule 26(B) claims. 631 F. App'x 436.

Petitioner’s Motion for Discovery and an Evidentiary Hearing (Doc. 45), those objections

are SUSTAINED. It is hereby ORDERED that Petitioner’s Motion for Discovery and an

Evidentiary Hearing (Doc. 39) is DENIED in its entirety.

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett

United States District Court