Cox v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICAH A. COX,

Petitioner,

. Case No. 3:22-cv-33

V. □

Judge Walter H. Rice

JENNY HILDEBRAND,

. Magistrate Judge Michael R. Merz

Warden, Madison °

Correctional Institution,

Respondent. .

ENTRY ADOPTING INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS (DOC.

#30, 35), OVERRULING OBJECTIONS THERETO (DOC. #33, 40), AND DISMISSING WITH

PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS (DOC. #4); JUDGMENT TO BE ENTERED

IN FAVOR OF RESPONDENT WARDEN AND AGAINST PETITIONER MICAH A. COX; PETITIONER

IS DENIED A CERTIFICATE OF APPEALABILITY AND SHOULD NOT BE PERMITTED TO

PROCEED ON APPEAL IN FORMA PAUPERIS; TERMINATION ENTRY

Pro Se Petitioner Micah A. Cox has filed a Petition for writ of habeas corpus.

(Petition, Doc. #3). Pursuant to 28 U.S.C. § 636(b) and General Order Day No. 22-01,

the matter was referred to Magistrate Judge Michael R. Merz for a Report and

Recommendations, which the Magistrate Judge filed on August 1, 2023. (Initial Report,

Doc. #30). Petitioner filed Objections (Doc. #33), and the undersigned recommitted the

matter to the Magistrate Judge (Recommittal Order, Doc. #34), who issued a

Supplemental Report and Recommendations (Doc. #35), to which Petitioner again

objected. (Supp. Objections, Doc. # 40). For the reasons set forth below, the Court

ADOPTS the Initial and Supplemental Reports, OVERRULES the Objections thereto,

and DISMISSES the Petition WITH PREJUDICE.

I. Procedural History and Legal Standards

The Initial Report fairly and completely set forth the factual background and

procedural history with respect to the Petitioner and Petition. (Doc. #30, PagelD 509-

11). The Court adopts that portion of the Initial Report and incorporates it by reference

herein.

As “a prisoner petition challenging the conditions of confinement{,]” the Petition

was referred to the Magistrate Judge pursuant to Federal Rule of Civil Procedure 72(b),

under which the Magistrate Judge “must enter a recommended disposition,” and “a

party may serve and file specific written objections to the proposed findings and

recommendations.” FED.R.Civ.P. 72(b)(1-2). “The district judge must determine de

novo any part of the magistrate judge's disposition that has been properly objected to.

The district judge may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with instructions.”

FED.R.Civ.P. 72(b)(3).

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-

132, 110 Stat. 1214, this Court's review of a claim adjudicated on the merits by a state

court is sharply circumscribed. The Court may grant relief only if that state-court

adjudication “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or... was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1-2). Further, “a

determination of a factual issue made by a State court shall be presumed to be correct.

The applicant shall have the burden of rebutting the presumption of correctness by clear

and convincing evidence.” 28 U.S.C. § 2254(e)(1). “lf this standard is difficult to meet,

that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

A state court may be found to have acted “contrary to” federal law by two means:

(1) if the state court's decision is “substantially different from the relevant precedent” of

the U.S. Supreme Court; or (2) if “the state court confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and nevertheless

arrives at a result different from [Supreme Court] precedent.” Williams (Terry) v. Taylor,

529 U.S. 362, 405, 406 (2000). A state court does not act contrary to federal law simply

because its application of federal law was incorrect. Rather, the decision must have

been “mutually opposed],]” id. at 406, to clearly established federal law, which

encompasses only the holdings of Supreme Court decisions, and not their dicta.

Williams (Terry), 529 U.S. at 412.

A federal habeas corpus petitioner must exhaust his federal constitutional claims

in the state court before he may bring those claims before this Court. 28 U.S.C. §

2254(b)(2). Exhaustion may be shown by demonstrating that: (1) the highest court of a

state has adjudicated the merits of the claim; or (2) under state law, the claims are

procedurally barred. Williams (Terry), 529 U.S. at 402-03; Gray v. Netherland, 518 U.S.

152, 161-62 (1996). “[T]he doctrine of exhaustion requires that a claim be presented to

the state courts under the same theory on which it is later presented in federal court.”

Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). However, if a claim is procedurally

barred under state law because “a state prisoner has defaulted his federal claims in

state court pursuant to an independent and adequate state procedural rule, [then]

federal habeas review of the claims is barred” unless the petitioner can demonstrate

cause and prejudice or that failure to adjudicate the claim “will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

il. Analysis

A. Claim One

Claim One is divided into two subclaims. In the first or “failure to object”

subclaim, Petitioner asserts that, at resentencing, his appointed counsel was allegedly

ineffective by failing to object to Petitioner not being physically present at the

resentencing. In the second or “divided loyalties” subclaim, Petitioner claims that prior

to resentencing, counsel demonstrated “divided loyalties” by failing to confer with

Petitioner about his desire to have a fine imposed at resentencing. Petitioner argues

that, had counsel conferred and represented to the trial court that Petitioner wanted the

fine to be imposed, the proceeding would have been a “de novo resentencing hearing”

as to the fine, and Petitioner would have been allowed to “to file another federal habeas

petition without its being considered successive.” (Doc. #30, PAGEID 515 (internal

quotation marks omitted), quoting State Court Record, Doc. #19, PAGEID 251; accord:

Doc. #3, PAGEID 57).

The Magistrate Judge concluded that the first subclaim is procedurally defaulted

because, on direct appeal, Petitioner merely raised a very general ineffective assistance

claim under Strickland v. Washington, 466 U.S. 668 (1984): that “Appellant was denied

his sixth amendment right to the effective assistance of counsel at resentencing.” (Doc.

#30, PAGEID 514, quoting Doc. #19, PAGEID 251). Petitioner did not mention anything

about counsel's failure to object, and the state appellate court did not mention any

failure to object in its decision. Thus, the Magistrate Judge reasoned, Petitioner did not

raise the legal and factual basis of a failure to object claim, and the lack of “fair

presentation” of the claim “at every stage of the appellate process” means that it cannot

be reviewed by this habeas Court. (/d. at PAGEID 514-15, citing Wagner v. Smith, 581

F.3d 410, 418 (6th Cir. 2009); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006);

State v. Cox, 2d Dist. Greene No. 2020-CA-14, 2020-Ohio-5030, JJ 7-9 (Oct. 23,

2020)).

The Magistrate Judge further concluded that the divided loyalties subclaim was

not properly raised in the state courts. The Magistrate Judge noted that while Petitioner

raised the divided loyalties claim, he did so not on direct appeal, but on a collateral

Motion for Final Appealable Order. In that latter motion, Petitioner claimed that because

his sentence did not include the mandatory fine, the sentence was void under Stafe ex

rel. Roberts v. Marsh. (Doc. #30 at PAGEID 510, 515-16, citing Doc. #19, PAGEID 251;

Marsh, 156 Ohio St. 3d 440, 2019-Ohio-1569, f] 10 (per curiam)). However, as the

Magistrate Judge discussed (id. at PAGEID 515-16), after the Motion was filed, the

Supreme Court of Ohio overruled numerous previous cases and held that “[w]hen a

case is within a court's subject-matter jurisdiction and the accused is properly before the

court, any error in the exercise of that jurisdiction in imposing postrelease control

renders the court's judgment voidable,” rather than void, “permitting the sentence to be

set aside if the error has been successfully challenged on direct appeal.” State v.

Harper, 160 Ohio St. 3d 480, 2020-Ohio-2913, J 4 (emphasis added). Before the

Second District Court of Appeals ruled on the motion, the Supreme Court of Ohio

extended Harper to instances, such as that of Petitioner, where a mandatory fine was

not imposed, holding that such failure to impose renders the judgment voidable. State

v. Henderson, 161 Ohio St. 3d 285, 2020-Ohio-4784, J 37. The Second District held

that:

[T]he Harper jurisprudence realignment applies to the failure to impose a

mandatory fine, and that part of Cox's judgment was not void. Because he

did not raise the mandatory fine error in his direct appeal, he cannot raise

it now.

Cox, 2020-Ohio-5030 at J 3.n.1, citing Harper, 2020-Ohio-2913 at J 43.

From the above, the Magistrate Judge concluded that the Second District was

correct to hold that the divided loyalties subclaim was defaulted. (Doc. #30, PAGEID

516). Alternatively, the Magistrate Judge concluded that, even if the subclaim were not

defaulted, Petitioner did not have a viable Strickland claim because he “failed to show

prejudice because|[,] under Ohio law[,] he was not entitled to collaterally attack his

sentence for failure to include the mandatory fine.” (Id. at 517, citing Strickland, 466

U.S. at 687).

While not a model of clarity, in his Objections, Petitioner appeared to argue that

he raised the failure to object subclaim as his first Proposition of Law to the Supreme

Court of Ohio, and that the divided loyalties subclaim was fairly raised as part of his

general ineffective assistance of counsel claim. Because, Petitioner argued, the state

court had fair opportunity to assess his Strickland claim, any failure to fashion the

subclaim precisely as a failure to object should be excused. (Initial Obj., Doc. #33,

PAGEID 529-31). As to the divided loyalties subclaim, Petitioner argued that the

Magistrate Judge’s reliance on Harper and Henderson was improper and amounted to

an imposition of ex post facto law. (/d. at PAGEID 532, citing Williams (Terry), 529 U.S.

at 409-10). Specifically, he argued that the holding in Harper was only to be applied

prospectively, and because his initial judgment predated Harper and Henderson, his

resentencing was void, rather than voidable, and must be vacated. (/d. at 532-33,

quoting Harper, 2020-Ohio-2913 at J 43).

In the Supplemental Report, the Magistrate Judge noted that Petitioner's focus

on whether he failed to exhaust fully the failure to object subclaim was misplaced,

because it was Petitioner's failure to fairly present the subclaim at aif that rendered it

procedurally defaulted. (Supp. Report, Doc. #35, PAGEID 546). As Petitioner had not

shown good cause for the default, the Court cannot consider the claim or even hold the

Petition in abeyance while Petitioner returns to state court, as it could with a merely

unexhausted claim. (/d., citing Rhines v. Weber, 544 U.S. 269 (2005); Wainwright v.

Sykes, 433 U.S. 72, 86-87 (1977)). As to the divided loyalties subclaim, the Magistrate

Judge emphasized that Petitioner was raising a Strickland claim, which the Second

District had already rejected on the merits, concluding that: (1) nothing in the record

suggests that counsel was aware of Petitioner's desire to be fined, meaning there could

not have been deficient performance, and (2) the trial court was required to waive the

fine regardless, meaning that even if counsel erred by not consulting with Petitioner

about wanting the fine imposed, there was no prejudice. (/d. at PagelD 547-48, quoting

Cox, 2020-Ohio-5030 at ¥ 9).

In the Supplemental Objections, Petitioner asserted that failure to exhaust is a

type of procedural default (which may be excused by a showing of cause and

prejudice), and that this the failure to object subclaim comes within the narrow class of

cases for which default would be a fundamental miscarriage of justice. (Supp. Obj.,

Doc. #40, PAGEID 564, quoting Schlup v. Delo, 513 U.S. 298, 314-15 (1995); Breard v.

Pruett, 134 F.3d 615, 619 (4th Cir. 1998), limited on other grounds by Mueller v.

Angelone, 181 F.3d 557 (4th Cir. 1999)). As to the divided loyalties subclaim, Petitioner

argued that he did not know that sentencing counsel had even been appointed, much

less that said counsel would decline to waive Petitioner's right to be present at

sentencing without consulting him. (/d. at PAGEID 565-66). Had counsel’s primary

loyalty been to him and not the State, Petitioner claimed, counsel would have consulted

with him as to why he wanted a $7,500 fine imposed at resentencing. (/d. at PAGEID

566-67). This failure to consult meant that a new valid judgment was not imposed, and

Petitioner unnecessarily had to obtain leave from the United States Court of Appeals for

the Sixth Circuit to file the instant Petition. (/d. at PAGEID 568; see also Transfer Order,

Doc. #13; In re Cox, Doc. #14, PAGEID 159 (citations omitted) (“Cox’s proposed

habeas petition is not second or successive[,] because the factual predicate for his

proposed claims did not arise until several years after his initial petition was fully

adjudicated. Thus, Cox need not obtain our authorization to proceed with the

petition.”)).

As to the failure to object subclaim, Petitioner's Strickland claim in state court

was based on counsel not following through with Petitioner's strategy for a fine to be

imposed at resentencing (Doc. #19, PAGEID 251-52), and “act[ing] without consulting

with appellant regarding his ‘pro se’ plan of action prior to participating in the

resentencing hearing.” (/d. at PAGEID 252). There was no mention of counsel being

deficient by failing to object to his absence at the hearing. Further, as the Magistrate

Judge noted, the Second District, in adjudicating Petitioner's ineffective assistance

claim on the merits, did not discuss any failure to object to Petitioner not being present

at the resentencing hearing. Cox, 2020-Ohio-5030 at | 7-9. This failure to put the

state court on notice of the factual basis of the subclaim means that it is procedurally

defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006), citing McMeans v.

Brigano, 228 F.3d 674, 681 (6th Cir. 2000).

As discussed above, a procedural default may be overcome only by a showing of

good cause for failing to present and prejudice from that failure, or that not excusing the

default would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at

750. In neither this subclaim nor any claim discussed infra that is also procedurally

defaulted has Petitioner attempted to show, much less shown, good cause as to why he

did not fairly present the claim or subclaim in every instance in state court. Petitioner

also has failed to show his factual innocence or convince the Court that there was

sufficient doubt as to his guilt; thus, Petitioner cannot meet the “fundamental

miscarriage” standard. See Schiup, 513 U.S. at 317, 321 (“To ensure that the

fundamental miscarriage of justice exception would remain ‘rare’ and would only be

applied in the ‘extraordinary case,’. . . this Court explicitly tied the miscarriage of justice

exception to the petitioner’s innocence.”). Consequently, this Court may not consider

the failure to object subclaim.

The divided loyalties subclaim, arising under Strickland, requires that a claimant

demonstrate prejudice from any ineffective assistance, and Petitioner cannot do so.

Even assuming that the state trial court’s decision not to fine Petitioner several

thousand dollars was improper, the Sixth Circuit allowed the Petition to proceed as first-

in-time, rather than second-or-successive.’ Any procedural error by this Court in

treating the Petition as second-or-sucessive and transferring it to the Sixth Circuit is

definitionally outside the scope of habeas corpus, which deals solely with state court

judgments. 28 U.S.C. § 2254(d). Petitioner has not identified any other way in which

he may have been prejudiced. Thus, even assuming that the divided loyalties subclaim

was not procedurally defaulted, Petitioner cannot satisfy Strickland, and the subclaim

must be dismissed.

1 The only prejudice Petitioner theoretically suffered was having his Petition erroneously

transferred from this Court, and the roughly five months delay in beginning merits adjudication.

Petitioner cites no caselaw suggesting that this qualifies as prejudice under Strickland; nor

could it, as the theoretical prejudice occurred from an act or omission by the Court, rather than

counsel. 10

B. Claim Two

In his second claim, Petitioner asserts that he “was denied his Sixth Amendment

right to be physically present for resentencing”; specifically, he “was resentenced in

absentia due to his refusal to waive his right to be present.” (Doc. #3, PAGEID #59).

Petitioner raised this claim on direct appeal solely as a violation of Ohio Criminal Rule

43(A) and section 10, Article 1 of the Ohio Constitution. (Doc. #19, PAGEID 253). The

Second District acknowledged that the trial court violated Rule 43(A) by resentencing

him in absentia without an express waiver by Petitioner or his counsel. Cox, 2020-Ohio-

5030, J 12. However, the Second District concluded that there was “no evidence to

suggest that the outcome would have been different if Cox had been physically

presenit{[,]” because “[b]jased on Cox’s own affidavit, the trial court found him indigent

and waived the fine, as it was required by statute to do[.]” /d. at ] 13. Thus, even if

Petitioner had fired counsel and, acting pro se, had asked the trial court to impose a

fine, as he claimed he wanted to do, the trial court could not have done so. As

Petitioner was not prejudiced, the Second District concluded that the trial court's

violation of Rule 43(A) was harmless and overruled the assignment. /d. The Second

District did not address any federal constitutional issue.

In the Initial Report, the Magistrate Judge concluded that the failure to present

the claim as a federal constitutional issue to the Second District meant the claim is

procedurally defaulted. (Doc. #30, PAGEID 519). The Magistrate Judge is correct. It is

well-settled Sixth Circuit law that “[flor a claim to be reviewable at the federal level, each

claim must be fairly presented at every stage of the state appellate process.” Wagner v.

11

Smith, 581 F.3d 410, 418 (6th Cir. 2009) (emphasis added). Even if Petitioner is correct

that he obliquely asserted a Sixth Amendment claim to the Supreme Court of Ohio

(Traverse, Doc. #29, PAGEID 498-99), the failure to present the claim to the state’s

Second District renders it forever defaulted.

In the Objections, Petitioner claimed that his complaint that he was not present at

sentencing was sufficient to invoke his Sixth and Fourteenth Amendment rights to a fair

trial. (Doc. #33, PAGEID 537-38, citing Verdin v. O'Leary, 972 F.2d 1467, 1478, 1481

(6th Cir. 1992)). He asserted that his state appellate argument was that Criminal Rule

43(A) was the embodiment of the federal constitutional guarantee of “the right to be

present at all stages of a criminal proceeding that is critical to its outcome when his or

her absence may frustrate the fairness of the proceedings.” (/d. at PAGEID 537, citing

Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). Again, Petitioner raised this argument

in his memorandum in support of jurisdiction to the Supreme Court of Ohio; he never

made a federal constitutional argument to the state’s Second District. That initial

omission means that the claim is barred from federal habeas review, no matter how

many times he raised it subsequently. Consequently, the claim must be dismissed.

Cc. Ciaim Three

Petitioner claimed that he “was denied due process and equal protection under

the law when an appellate court commit[ted] a mistake of law.” Specifically, he alleged

that the Second District “erroneously determined R.C. 2929.18(B)(1) does not apply to

Petitioner's case despite explicit language to the contrary.” (Doc. #3, PAGEID #60).

The Magistrate Judge concluded that this claim, like Claim Two, was procedurally

12

defaulted because Petitioner did not raise that constitutional claim to the Supreme Court

of Ohio. (Doc. #30, PAGEID 520-21). Further, even if the state’s Second District

violated Ohio Revised Code § 2929.18(B)(1) by failing to vacate his sentence for the

trial court's failure to impose a fine, that violation does not, by itself, create a cognizable

habeas claim. (/d. at PAGEID 521, citing Levine v. Torvik, 1515 (6th Cir. 1993),

overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995)).

Petitioner argued that “he has exhausted this Due Process claim by presenting it

as a ‘sufficiency of evidence’ claim.” (Doc. #33, PAGEID 539, citing Evans v. Court of

Common Pleas, 959 F.2d 1227, 1231-33 (3d Cir. 1992); West v. Wright, 931 F.2d 262,

266 (4th Cir. 1991), rev'd on other grounds, 505 U.S. 277 (1992)). However, the

“insufficient affidavit” alleged by Petitioner with respect to his ability to pay a fine, Cox,

2020-Ohio-5030, J 14, has to do with state criminal procedure, and is distinct from the

“sufficiency of the evidence” necessary to sustain a conviction, and which implicates

federal due process. See, e.g., Evans, 959 F.2d at 1231. As there was no presentation

of a due process or equal protection claim anywhere in the state court, Petitioner may

not raise it here. Thus, Claim Three is dismissed as procedurally defaulted.

D. Claim Four

Finally, Petitioner claimed that he “was denied due process when he was denied

his right of allocution by” the trial judge “resentencing him in his absence.” (Doc. #3,

PAGEID 62). The Magistrate Judge correctly noted that there is no constitutional right

to allocution. (Doc. #30, PAGEID 521-22, citing Hill v. United States, 368 U.S. 424, 428

(1962)). The Magistrate Judge also properly rejected Petitioner's attempt, in his

13

Traverse, to refashion the claim as arising under Strickland, based on Petitioner's

counsel failing to object at sentencing to Petitioner losing his purported right to allocute.

(/d. at 522, citing Jalowiec v. Bradshaw, 657 F.3d 293, 311-12 (6th Cir. 2011); Tyler v.

Mitchell, 416 F.3d 500, 504 (6th Cir. 2005); Traverse, Doc. #29, PAGEID 503-07).

Petitioner did not object to the Magistrate Judge’s conclusions. Nor could he

reasonably do so, as it is well-established that: (a) denial of allocution does not

implicate due process; (b) a district court is well within its discretion not to consider an

argument raised for the first time in a Traverse. Accordingly, Claim Four is dismissed.

lll. Conclusion

In light of the above, the Court ADOPTS the Initial (Doc. #30) and Supplemental

(Doc. #35) Report and Recommendations and OVERRULES Petitioners Objections

thereto (Docs. #33, 40). The Petition (Doc. #3) is DISMISSED WITH PREJUDICE.

Judgment shall enter in favor of the Respondent Warden and against Petitioner.

Because Petitioner has not “made a substantial showing of the denial of a constitutional

right[,]” 28 U.S.C. § 2253(c)(2), and the result reached herein would not be debatable

among reasonable jurists, the Court does not grant him a certificate of appealability.

The Court further certifies that any appeal to the Sixth Circuit would not be taken in

good faith, and Petitioner should not be permitted to proceed on appeal in forma

pauperis.

14

The captioned cause is hereby ordered terminated upon the docket records of

the United States District Court for the Southern District of Ohio, Western Division, at

Dayton.

IT IS SO ORDERED.

/

WALTER H. RICE, JUDGE

January 29, 2024 UNITED STATES DISTRICT COURT

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