Landrum v. Anderson, No. C-1-96-641.

• Citation: 185 F.Supp.2d 868
• Decision Date: 04 February 2002
• Docket Number: No. C-1-96-641.
• Parties: Lawrence LANDRUM, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

185 F.Supp.2d 868

Lawrence LANDRUM, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.

No. C-1-96-641.

United States District Court, S.D. Ohio, Western Division.

February 4, 2002.

Gerald W. Simmons, Thompson Hine, Cincinnati, OH, David Bodiker, Ohio Public Defender, Randall L. Porter, Asst. Ohio Public Defender, Columbus, OH, for Petitioner.

Michael L. Collyer, Asst. Attorney General, Capital Crimes Section, Cleveland, OH, for Respondent.

DECISION AND ORDER GRANTING PETITIONER'S MOTION FOR RECONSIDERATION

MERZ, United States Magistrate Judge.

This capital habeas corpus case is before the Court on Petitioner's Motion for Reconsideration Concerning the Court's Denying Expansion of the Record (Doc. No. 140). Respondent has opposed the Motion (Doc. No. 145) and Petitioner has filed a Reply Memorandum in support (Doc. No. 146). It is clear from the docket context that this Motion is directed to the Magistrate Judge, as opposed to the two roughly concurrent appeals taken to District Judge Weber from Magistrate Judge Orders denying expansion of the record and denying in part Petitioner's Motion for Evidentiary Hearing.

The Motion was filed in response to the Court's invitation¹ to brief the application of Edwards v. Carpenter, 529 U.S. 446, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000), to the question of whether the proffered affidavit of Ken Murray should be admitted to the record under Habeas Rule 7.

Mr. Murray's Affidavit is offered to show cause to excuse Petitioner's asserted procedural default in presenting his claims of ineffective assistance of appellate counsel to the Ohio courts.² In the original ruling excluding the Affidavit, the Magistrate Judge held "Mr. Murray's Affidavit will be excluded because it is precluded by procedural default in not presenting it (or its equivalent) to the state courts." (Doc. No. 134 at 4).

Petitioner offers three reasons to allow the Affidavit to be considered:

1. "The issue of cause is irrelevant to the Court's consideration of the constitutional issues contained in Petitioner Landrum's Application for Re-Opening" because the Ohio App. R. 26(B) requirement to show "good cause" for late filing of a petition for reopening is not an adequate and independent state ground for the decision of the state courts not to consider those constitutional issues. Motion, Doc. No. 140, 2-4.

2. The state courts would not have considered Murray's Affidavit if it had been presented to them. Id. at 4-6.

3. Petitioner has cause to excuse any failure to present the Murray Affidavit to the state courts, to wit, the ineffective assistance rendered to Petitioner by the lawyer who represented him in the application for re-opening process. Id. at 6-7. Additionally, Petitioner has no avenue through which to present this ineffectiveness claim to the Ohio courts.

Respondent opposes all three arguments and notes in addition that Petitioner has changed his claimed cause for delay since he presented his arguments in the state courts (Memorandum Opposing Reconsideration, Doc. No. 145).

The Court does not reach Petitioner's second and third arguments because it concludes Petitioner is not barred from obtaining merits review of his ineffective assistance of appellate counsel claims by any default in presenting those claims to the Ohio courts.

Both parties agree that the Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir.1998), citing 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.

* * * * * *

Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim. Once the court determines 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 under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Maupin, 785 F.2d, at 138.

Mr. Landrum was convicted in 1986 and his conviction became final on direct appeal when the United States Supreme Court denied certiorari in 1991. Landrum v. Ohio, 498 U.S. 1127, 111 S.Ct. 1092, 112 L.Ed.2d 1196 (1991). His petition for post-conviction relief under Ohio Revised Code § 2953.21 was filed May 28, 1996, and became final when the Ohio Supreme Court denied review. State v. Landrum, 85 Ohio St.3d 1476, 709 N.E.2d 849 (1999). Landrum's Application for Re Opening was filed September 22, 1998, by Assistant State Public Defender Pamela Prude Smithers (Return of Writ, Doc. No. 84, Ex. CCC).

At the insistence of the Ross County Court of Appeals,³ Landrum filed on December 1, 1998, a Memorandum Explaining Delay in Filing Application for Reopening (Id., Ex. DDD). Ms. Prude Smithers noted that Landrum's conviction had been affirmed on direct appeal before the Ohio Supreme Court decided State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), and ipso facto before Murnahan was codified in Ohio App. R. 26(B)(effective July 1, 1993). Therefore, she reasoned, Landrum could not have complied with Murnahan or 26(B) and the impossibility of doing so constitutes "good cause." She concluded, "Once an applicant has established good cause for filing more than ninety days after journalization of the appellate judgment, it does not matter when the application is filed."

The Court of Appeals wrote in response: We disagree. Assuming that good cause once existed for the delay in filing an App. R. 26(B) application, once the reasons for delay are gone, good cause no longer exists. Good cause is not an excuse which lingers indefinitely. State v. Fox, 83 Ohio St.3d 514 (1998).

. . . . .

The term good cause, as applied to App. R. 26(B) applications, must constitute more than allegations that difficulties or hindrances to filing the application existed. State v. Winstead, 74 Ohio St.3d 277, 658 N.E.2d 722 (1996); State v. Witlicki, 74 Ohio St.3d 237, 658 N.E.2d 275 (1996); State v. Houston, 73 Ohio St.3d 346, 652 N.E.2d 1018 (1995). The record reflects that appellant was represented by several different attorneys during the seven years after representation by his trial and appellate counsel ended. Appellant presents this Court with no good reason explaining why this lengthy period elapsed before he filed his App. R. 26(B) application. Accordingly, we find that he has not established good cause to reopen his appeal.

State v. Landrum, Case No. 86 CA 1330 (Ross County, April 13, 1999)(Copy at Return of Writ, Doc. No. 84, Ex. EEE). The Ohio Supreme Court affirmed the Court of Appeals for the reasons it had given, to wit, that no good cause had been shown for the untimely filing. State v. Landrum, 87 Ohio St.3d 315, 87 Ohio St.3d 315, 720 N.E.2d 524 (1999), citing State v. Fox, supra, and State v. Wickline, 74 Ohio St.3d 369, 371, 658 N.E. 2nd 1052, 1053 (1996).

It is very clear on this record, then, that Respondent has satisfied the first two prongs of Maupin: there is a state procedural rule applicable to the case and it was adversely applied to Petitioner, resulting in denial of his application for delayed reopening.

Petitioner, however, contends Respondent's case for procedural default flounders on the third Maupin prong because Ohio R.App. P. 26(B) is not an adequate and independent state ground. In support, Petitioner first cited four Ohio Supreme Court cases in which, Petitioner asserts, Rule 26(B) was not enforced.

• State v. Hill, 90 Ohio St.3d 571, 740 N.E.2d 282 (2001). In Hill the Court of Appeals denied an October 1, 1999, application for delayed reopening on timeliness grounds. The Ohio Supreme Court affirmed on grounds Hill had not shown he had a colorable claim of ineffective assistance of counsel.

• State v. Sheppard, 91 Ohio St.3d 329, 744 N.E.2d 770 (2001), is precisely parallel to Hill. The Court of Appeals denied a March 9, 2000, application for delayed reopening on timeliness grounds, and the Ohio Supreme Court affirmed on the same grounds and virtually the same language as in Hill.

• State v. Bradley, 91 Ohio St.3d 570, 747 N.E.2d 819 (2001). There the Court of Appeals denied the application on both timeliness and failure to raise a genuine issue grounds and the Supreme Court affirmed on the second basis.

• State v. Hooks, 92 Ohio St.3d 83, 748 N.E.2d 528 (2001). Here, although the application for reopening was filed more than a decade after the Court of Appeals rendered its decision on direct appeal, the application was denied by both the Court of Appeals and the Supreme Court on grounds other than timeliness.

In his Reply Memorandum, Petitioner cites four more Ohio Supreme Court cases:

• In State v. Brooks, 92 Ohio St.3d 537, 751 N.E.2d 1040 (2001), the Court of Appeals denied reopening on timeliness grounds but also on the merits. The Ohio Supreme Court affirmed on the second ground and did not decide the first.

• In State v. Jalowiec, 92 Ohio St.3d 421, 751 N.E.2d 467 (2001), the Court of Appeals had denied reopening on timeliness grounds, but the Ohio Supreme Court affirmed for lack of merit.

• In State v. Palmer, 92 Ohio St.3d 241, 749 N.E.2d 749 (2001), the Court of Appeals had also denied reopening on timeliness grounds, but the Ohio Supreme Court affirmed for lack of merit, specifically eschewing any consideration of the White v. Schotten, 201 F.3d 743 (6th Cir.2000), question.

• In State v. Jells, 90 Ohio St.3d 454, 739 N.E.2d...