The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
EDDIE SAVAGE,
Petitioner, : Case No. 1:21-cv-33
- vs - District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz
EMMA COLLINS, Warden,
Pickaway Correctional Institution,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Eddie Savage under 28 U.S.C. §
2254, is before the Court on Petitioner’s Objections (ECF No. 10) to the Magistrate Judge’s Denial
of Stay and Report and Recommendations (the “Report,” ECF No. 9). District Judge Cole has
recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (Order,
ECF No. 11).
Denial of Stay
Petitioner sought a stay of these habeas corpus proceedings pending the outcome of
proceedings in the Hamilton County Court of Common Pleas on his “Delayed Post-Conviction
2953.21” and “Amended Delayed Post-Conviction 2953.21” (State Court Record, ECF Nos. 21
and 22). These pleadings were filed on November 24, 2020, and December 15, 2020, respectively,
and they remained pending as of the date the Return of Writ was filed, April 30, 2021.
The Report denied a stay, applying the standard adopted in Rhines v. Weber, 544 U.S. 269
(2005). The Magistrate Judge reasoned that both pleadings were untimely under Ohio Revised
Code § 2953.21 and therefore the Common Pleas Court lacked jurisdiction to consider them on
the merits (Report, ECF No. 9, PageID 303). Neither party has reported to the Court any action
on those pleadings as of the date of this Supplemental Report.
Petitioner objects that:
Contrary to the Magistrates misapprehension - petitioner filed an
affidavit within the amended Delayed post-conviction alerting the
courts that when trial counsel came to meet with the Petitioner
before trial, he presented the same depiction of the 17D and 17E that
was published at trial (key on driver seat, 3-8x11 papers on the floor
board of the truck). See Page #235 - That counsel handing over the
same boost depiction as the court record 17D and 17E was just
merely an attempted [sic] to conceal the conspiracy.
(Objections, ECF No. 10, PageID 325). The referenced page of the record, PageID 235, is labeled
by Petitioner as an affidavit of trial counsel Kip Guinan admitting that he presented the false
evidence to Savage before trial and that he conspired with Police Office Lampke and Prosecutor
Mary Polston to corrupt the outcome of the trial. However even on its face it is clear this document
is not an affidavit of attorney Guinan because it plainly bears Petitioner’s signature above the
notary’s jurat. This is simply not proof that the evidence was tampered with or falsified, much
less of any conspiracy among police, prosecution, and defense trial attorney.
Regarding the Report’s conclusion that Petitioner’s Delayed and Amended Delayed post-
conviction petitions were untimely, Savage says in the body of the Amended Delayed Petition:
Until February 5, 2020, where Petitioner was able to obtain copies
of said exhibits, Petitioner presumed that Exhibits 17D and 17E
were the same as depicted at trial. "The key on the driver seat and
some paperwork on the floor board", upon receiving the copies of
exhibits 17D and 17E, the Petitioner realized that exhibits at trial
were different from those delivered to the jury for deliberation. (See
Exhibits 8, 9, 10 and 11).
(Amended Delayed Petition, State Court Record, ECF No. 5, PageID 223.) There is in fact nothing
attached to the Amended Delayed Petition which is labeled Exhibit 8, 9, 10, or 11; the first labeled
exhibit is Exhibit 16. Id. at PageID 236.
As further ground for a stay, Petitioner avers “On 9-10-2020, Petitioner filed a State habeas
corpus with Pickaway Coounty [sic]. The petition dehords [sic] the respondent furnished
record and therefore deprives the Magistrate recommendation from a meaningful review.”
(Objections, ECF No. 10, PageID 326). Petitioner did not include this Petition in his Motion for
Stay and does not present it now. Without the content of that Petition, the Court cannot judge
whether it merits a stay under Rhines.
Petitioner advises that his currently pending petitions under Ohio Revised Code § 2953.21
present claims that the Hamilton County Court of Common Pleas lacked subject matter jurisdiction
to try him because the affidavit underlying the arrest warrant did not contain probable cause
(Objections, ECF No. 10, PageID 327). But lack of probable cause supporting an arrest warrant
would not prevent a common pleas court from having subject matter jurisdiction. Ohio common
pleas courts are courts of general jurisdiction. State ex rel. Winnefeld v. Court of Common Pleas
of Butler County, 159 Ohio St. 225 (1953); State ex rel Miller v. Court of Common Pleas of Lake
County, 151 Ohio St. 397 (1949). Only the Hamilton County Common Pleas Court would have
subject matter jurisdiction to try a felony case arising within that county. The grand jury returned
an indictment upon its finding of probable cause and an arrest warrant was issued on that finding
(Indictment, State Court Record, ECF No. 10, Ex. 1). That is sufficient to establish subject matter
jurisdiction.
Procedural Default
The Report concluded all of Petitioner’s Grounds for Relief were procedurally defaulted.
The Magistrate Judge read Petitioner’s response to that defense as claiming he was actually
innocent and rejected that claim because the “new evidence” on which Savage relies does not meet
the demanding standards for such evidence prescribed by the Supreme Court in Schlup v. Delo,
513 U.S. 298, 324 (1995).
Savage objects that the Report “fail[s] to test the false exhibits against the critical physical
evidence prong of Shlup [sic].” (Objections, ECF No. 10, PageID 328). But Savage has not
presented “new” evidence to this Court. Instead he claims, as best the Magistrate Judge
understands it, that exhibits 17D and 17E as sent to the jury room are not the same exhibits 17D
and 17E that were admitted in evidence, a fact he claims he discovered in some undisclosed way
on February 5, 2020, and which he first presented in his “Motion to Request the Court to Notice
Plan [sic] Error under [Rule] 52(B)” (State Court Record, ECF No. 5, Ex. 18).
The State defended against that Motion by arguing that Ohio R. Crim. P. 52(B) is not a
vehicle for post-conviction relief (State Court Record, ECF No. 5, Ex. 19, PageID 180). Such
relief can be obtained through a petition under Ohio Revised Code § 2953.21, but Savage’s motion
was untimely. Id. More importantly, because “[t]he photographs he discusses in the motion were
admitted during the trial,” the issue is barred by res judicata because it could have been raised on
direct appeal. Id. Judge Luebbers found the motion was not well taken (State Court Record ECF
No. 5, Ex. 20) and Savage did not appeal, leaving her finding that the motion was not well taken
unchallenged.
Whatever Petitioner has presented to the state courts that he claims is new evidence, he has
presented no new evidence to this Court that satisfies Schlup. Thus he has not overcome his
procedural default in presenting this claim on direct appeal.
The Report noted that under Ohio law claims of ineffective assistance of appellate counsel
must be made by way of an application to reopen the appeal under Ohio R. App. P. 26(B); Savage
has never made such an application and the time for doing so has passed. On this basis the Report
found any claims of ineffective assistance of appellate counsel to be procedurally defaulted.
Petitioner objects that his Delayed Petition and Amended Delayed Petition depend on facts
outside the record (Objections, ECF No. 10, PageID 330). However, the Supreme Court of Ohjio
has plainly and consistently held that claims of ineffective assistance of appellate counsel cannot
be brought under Ohio Revised Code § 2953.21. State v. Murnahan, 63 Ohio St. 3d 60 (1992).
Conclusion
The Magistrate Judge remains persuaded that all of Petitioner’s Grounds for Relief are
barred by procedural default and again respectfully recommends that the Petition be dismissed
with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also
recommended that Petitioner be denied a certificate of appealability and that the Court certify to
the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to
proceed in forma pauperis.
August 3, 2021.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #