McGlothin v. Jackson, CASE NO.: 1:09-cv-48

• Decision Date: 29 March 2016
• Docket Number: CASE NO.: 1:09-cv-48
• Parties: CAMERON McGLOTHIN, Petitioner, v. WANZA JACKSON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CAMERON McGLOTHIN, Petitioner, v. WANZA JACKSON, Warden, Respondent.

CASE NO.: 1:09-cv-48

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

March 29, 2016

Barrett, J.

Merz, M.J.

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge's Report and Recommendation ("Report") (Doc. 20), Petitioner Cameron McGlothin's Objections to the Report and Recommendation ("First Objections") (Doc. 21), the Magistrate Judge's Supplemental Report and Recommendation ("Supplemental Report") (Doc. 23), and Petitioner Cameron McGlothin's Objections to the Supplemental Report and Recommendation ("Second Objections") (Doc. 24).

I. STANDARDS OF REVIEW

A. Objections

When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). After review, the district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to preserve any issues for review: "[a] general objection to the entirety of the Magistrate [Judge]'s report has the same effects as would a failure to object." Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

B. 28 U.S.C. § 2254

Under 28 U.S.C. § 2254(a), a district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treatises of the United States." Generally that means that an application for writ of habeas corpus shall not be granted with respect to any claim adjudicated on the merits in the State court unless the petitioner properly has exhausted his administrative remedies and the adjudication either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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(b), (d). "This is a 'difficult to meet,' . . . and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner carries the burden of proof. Cullen, 563 U.S. at 181.

II. ANALYSIS

The Report and Supplemental Report address the six Grounds for Relief plead by McGlothin and the issue of a certificate of appealability. Each Ground for Relief and the certificate of appealability are discussed below.

A. First Ground for Relief

In his First Ground for Relief, McGlothin claims that he was denied the due process of law guaranteed by the Fourteenth Amendment when the trial court refused to grant him a new trial. (Doc. 1, PageId 5; Doc. 1-1, PageId 21). The Report recommended that the First Groundfor Relief be dismissed as procedurally defaulted because he did not fairly present it to the state court at every stage of the appellate process. (Doc. 20, PageId 2327-31).

McGlothin objected to that recommendation on the basis that even though the only case cited in his appeal to the First District Court of Appeals was State v. Condon, 157 Ohio App. 3d 26 (2004), which focused primarily on Ohio R. Crim. P. 33, the court's statement that "we believe that fundamental fairness and the interests of justice support the minority view" provides a rationale sounding in due process. (Doc. 21, PageId 2350). He further contended that he clarified the federal nature of his claim in his memorandum to the Ohio Supreme Court. (Id., PageId 2351-52). Finally, he argued that the state procedural rule for granting new trials creates a substantial and legitimate expectation that is protected by the Due Process Clause. (Doc. 21, PageId 2352). He therefore claimed that he fairly presented his constitutional claim at the state level. Alternatively, he argued that any procedural default would be excused because of his actual innocence. (Doc. 21, PageId 2352).

The Supplemental Report again recommended that the First Ground for Relief be dismissed with prejudice as procedurally defaulted or, alternatively, on the merits because there is no federal constitutional right, clearly established by Supreme Court precedent, for a new trial in the circumstances McGlothin presents. (Doc. 23, PageId 2368-69). In a six and one-half page discussion, the Supplemental Report stated that the citation to Condon in the brief to the First District did not satisfy the criteria for fairly presenting both the factual and legal basis for the claim as articulated in Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004). Specifically, the Supplemental Report concluded that McGlothin did not phrase his claim in terms of any federal constitutional right, did not cite any federal cases, relied only on Condon, which did not employ any federal constitutional analysis (the reference to fundamental fairness and justice did notamount to a federal constitutional analysis), and did not rely on any facts within the mainstream of any particular federal constitutional right. (Doc. 23, PageId 2366). According to the Supplemental Report, McGlothin's citation to Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988) in his objections did not change the result because it was not cited on appeal so as to allow the First District to consider the constitutional argument it makes. (Doc. 23, PageId 2366). In any event, the Supplemental Report concluded that Sanders did not support relief in this case because this is not a case where a critical trial witness recanted his testimony and because Sanders is no longer good law as it has been superseded by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which permits habeas relief to be granted only on the basis of law clearly established by holdings of the United States Supreme Court. (Id., PageId 2367). As for the criminal procedural rule creating an interest protected by the Due Process Clause, the Supplemental Report determined that failure to abide by state law is not itself a constitutional violation and failure to follow the state's own procedural rule is not necessarily a violation of due process. (Doc. 23, PageId 2368). Finally, the Supplemental Report determined that any procedural default should not be excused based on actual innocence. (Id., PageId 2368).

In his Second Objections, McGlothin maintained that he fairly presented the constitutional issue to the First District. He again referenced his citation to Condon in his appellate brief, noting that although the case focused primarily on Ohio R. Crim. P. 33, the court also phrased its opinion in terms of "fundamental fairness and the interests of justice." (Doc. 24, PageId 2381). He further argued that any procedural default should be excused because he is actually innocent of the charges against him. (Id., PageId 2382).

Having reviewed the issues de novo, the undersigned agrees with the Magistrate Judge that the First Ground for Relief must be dismissed with prejudice. The objections presented byMcGlothin do not alter the correct analysis set forth in the Report and the Supplemental Report. First, McGlothin has procedurally defaulted his First Ground for Relief. As the Report and Supplemental Report correctly explain, a federal constitutional claim is preserved for presentation in habeas corpus only when it is "fairly presented" to the state courts in a way that provides them with an opportunity to remedy the asserted constitutional violations, including presenting both the legal and factual basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Merely using talismanic constitutional phrases like "fair trial" or "due process of law" does not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The Sixth Circuit explained the "fairly presented" standard in Hicks v. Straub, 377 F.3d 538, 553 (6th Cir. 2004) (citing McMeans, 228 F.3d at 681):

In determining whether a petitioner "fairly presented" a federal constitutional claim to the state courts, we consider whether: 1) the petitioner phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional right in question; 2) the petitioner relied upon federal cases employing the constitutional analysis in question; 3) the petitioner relied upon state cases employing the federal constitutional analysis in question; or 4) the petitioner alleged "facts well within the mainstream of [the pertinent] constitutional law."

The federal constitutional issue also must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009).

The claim presented by McGlothin to the First District does not satisfy the requisite standard for fair presentation. McGlothin's conclusory objection that he "phrased his claims in terms sufficiently particular to assert a mainstream fundamental due process" claim does nothing to undermine the analysis set forth in the Report and the Supplemental Report as to fair presentation. Indeed, he cites to nothing other than Condon to support that contention. As McGlothin concedes, Condon, the sole case relied upon in the First District, "focused primarilyon Ohio Rule of Crim. [P.] 33[.]" (Doc. 24, PageId 2381). The Condon court's bare reference to "fundamental...