Castor v. Warden
Decision Date | 13 April 2017 |
Docket Number | Case No. 2:16-cv-0050 |
Parties | GEORGE A. CASTOR, JR., Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent. |
Court | U.S. District Court — Southern District of Ohio |
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 3), Respondent's Return of Writ (ECF No. 8), Petitioner's Traverse (ECF No. 11), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:
State v. Castor, No. 14 CAA 01 0004, 2014 WL 6648987, at *1 (Ohio App. 5th Dist. Nov. 24, 2014). On November 24, 2014, the appellate court affirmed the judgment of the trial court. Id. On April 29, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Castor, 142 Ohio St.3d 1452 (2015).
On February 18, 2015, Petitioner filed a motion for extension of time to file an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Motion for Extension of Time to File under APP.R. 26(B) (ECF No. 8-1, PageID# 271). On March 25, 2015, the appellate court granted that motion, but gave Petitioner until March 24, 2015, to file the Rule 26(B) application. Judgment Entry (PageID# 272). On April 10, 2015, Petitioner filed a delayed Rule 26(B) application. Appellant's Delayed Application for Reopening (PageID# 273). On April 28, 2015, the appellate court denied the motion because it was untimely and because the court lacked jurisdiction to entertain the application due to Petitioner's pending appeal in the Ohio Supreme Court. Judgment Entry (PageID# 293). On May 4, 2015, Petitioner filed a motion for a stay. Motion for Stay of Proceedings (PageID# 294). On June 15, 2015, the appellate court denied that motion. Judgment Entry (PageID# 306). Petitioner filed a timely appeal from that decision to the Ohio Supreme Court which, on August 26, 2015, declined to accept jurisdiction of the appeal. State v. Castor, 143 Ohio St.3d 1447 (2015).
Petitioner filed this action on January 19, 2016. He alleges that he is being held in violation of his right to proper venue (claim one); that he was denied the effective assistance of trial counsel because his attorney failed to challenge the constitutionality of O.R.C. § 2901.12(H) (claim two); that the State failed to present sufficient evidence to establish a unifying course of conduct for trying Counts One through Thirty-One in Delaware, Ohio (claim three); that he was convicted as a result of an impermissibly suggestive photo array (claim four); that he was deniedthe effective assistance of appellate counsel (claim five); that the evidence is constitutionally insufficient to sustain his convictions (claim six); that the trial court improperly imposed sentences of "mandatory time" (claim seven); that he was denied his right to a fair and impartial jury because one of the jurors kept falling asleep during trial (claim eight); and that he was denied the effective assistance of trial counsel because his attorney failed to request a mistrial or the seating of an alternate juror based on a juror falling asleep during trial (claim nine). Respondent contends that Petitioner's claims are procedurally defaulted or without merit.
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, however, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims must first present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his 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 thecourse 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. In the words used by the Supreme Court 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."
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "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." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This"cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
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 sufficient 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...
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