McIntosh v. Hudson

Citation632 F.Supp.2d 725
Decision Date10 July 2009
Docket NumberCase No. 3:07 CV 2583.
PartiesAkil McINTOSH, Plaintiff, v. Stuart HUDSON, Defendant.
CourtU.S. District Court — Northern District of Ohio

Akil McIntosh, Marion, OH, pro se.

Hilda Rosenberg, Office of the Attorney General, Cincinnati, OH, for Defendant.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on: (1) Petitioner's Objections to the Report and Recommendation ("R & R") of the Magistrate Judge (Doc. 14, 16); (2) Respondent's Motion to Strike Petitioner's Objections (Doc. 18); and (3) Petitioner's Motion for Leave to Amend Petition (Doc. 17; see also Respondent's Opposition (Doc. 20) and Petitioner's Reply (Doc. 21)). This Court has habeas jurisdiction pursuant to 28 U.S.C. § 2241(a).

As set forth below, the Court finds: (1) that Petitioner has properly objected to the Magistrate Judge's R & R; (2) that Petitioner does not present sufficient reasons to justify an amendment of his petition; (3) that Petitioner's claims relating to his conviction and sentencing are barred by the statute of limitations; (4) that Petitioner's claims relating to the appellate court's denial of leave to file a delayed appeal are not time-barred; (5) that Petitioner's appeal-based claims were properly exhausted before the state courts; and (6) that Petitioner's appeal-based claims are meritorious.

Accordingly, Respondent's motion to strike Petitioner's objections is denied. (Doc. 18). Petitioner's motion for leave to amend petition is denied. (Doc. 19). The Magistrate Judge's R & R is adopted in part and rejected in part: Petitioner's claims with respect to his conviction and sentencing are dismissed with prejudice; Petitioner's habeas Petition with respect to the denial of leave to file a delayed appeal is conditionally granted. (Doc. 1, 11). The State of Ohio shall reinstate Petitioner's direct appeal of his conviction within sixty days of Petitioner's renewed filing for motion for delayed appeal, or Petitioner shall be released from prison.

I. BACKGROUND

On May 3, 2004, before the Cuyahoga County Court of Common Pleas, Petitioner pled guilty to murder in violation of OHIO REV. CODE § 2903.02(A) with a three-year firearm specification pursuant to § 2941.145. (Doc. 7, Ex. 3, 4). Petitioner was represented by counsel (Id.). The trial court sentenced Petitioner to a prison term of 18 years to life. (Id.). The trial court did not mention Petitioner's appellate rights in any context. (See Doc. 7, Ex. 4). The trial court entered Petitioner's conviction and sentence on May 6, 2004. (Doc. 7, Ex. 3).

On February 16, 2007, Petitioner, appearing pro se, filed with the Court of Appeals of Ohio for the Eighth District a notice of appeal, a motion for leave to file a delayed appeal, and a motion for appointment of counsel. (Doc. 7, Ex. 12, 15). In asking for a delayed appeal, Petitioner argued that the trial court and trial counsel failed to advise him of his right to appeal, which was the cause of delay in filing for appellate relief. (Id.). On March 13, 2007, the appellate court denied without comment Petitioner's motion for leave to file a delayed appeal; denied Petitioner's motion for appointment of counsel; and sua sponte dismissed Petitioner's appeal. (Doc. 7, Ex. 15).

On April 23, 2007, Petitioner, pro se, filed a notice of appeal to the Supreme Court of Ohio. (Doc. 7, Ex. 16). Petitioner, in his Memorandum of Jurisdiction, argued that the appellate court violated the United States and Ohio State Constitutions in denying leave to file a delayed appeal and in denying appointment of counsel on appeal. (Doc. 7, Ex. 16 at 4-6). Petitioner set forth the following proposition of law: "A court of appeals abuses its discretion when it denies leave to file a delayed appeal where the delay in noting an appeal is attributed to the trial court's failure to advise the criminal defendant of his right to appeal." (Doc. 7, Ex. 17 at 4). On July 25, 2007, 114 Ohio St.3d 1482, 870 N.E.2d 733 (2007), the Supreme Court of Ohio dismissed the appeal "as not involving any substantial constitutional question." (Doc. 7, Ex. 19).

On August 15, 2007, Petitioner filed this Petition for a Writ of Habeas Corpus in forma pauperis. (Doc. 1). See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999) (citing Houston v. Lack, 487 U.S. 266, 270-74, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)) (a pro se prisoner's petition is considered to be filed on the day he delivers it to prison authorities). Petitioner raises three grounds for relief:

Ground One: Petitioner has been denied due process under the Fourteenth Amendment to the United States Constitution.

Supporting Facts: The Ohio Court of Common Pleas and Ohio Court of Appeals have prevented petitioner from pursuing an appeal of right by failing to advise him of his appellate rights and then refused to allow him to file a delayed appeal.

Ground Two: Petitioner has been denied the federal right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

Supporting Facts: The Ohio Court of Common Pleas and the Ohio Court of Appeals have prevented petitioner from obtaining court appointed counsel despite his indigency.

Ground Three: Petitioner has been denied the federal right to effective counsel guaranteed by the Sixth Amendment to the United States Constitution.

Supporting Facts: Petitioner's trial counsel did not advise him of his right to appeal, ask if he would like to appeal, or have counsel appointed to file an appeal for petitioner.

(Doc. 1 at 6-9). Respondent's Return of Writ (Doc. 8) and Petitioner's Traverse (Doc. 10) followed.1

On September 25, 2008, 2008 WL 6549562 (N.D.Ohio 2008), the Magistrate Judge recommended that the Petition be dismissed as barred by the applicable statute of limitations. (Doc. 11). This Court adopted the Magistrate Judge's R & R and ordered the Petition dismissed on October 28, 2008, 2008 WL 4758695 (N.D.Ohio 2008). (Doc. 13). On October 30, 2008, the Court received a general objection, dated October 27, 2008, to the Magistrate Judge's R & R and a motion for extension of time to file more specific objections. (Doc. 14). Upon a showing of good cause, the Court vacated the order of dismissal, reopened the case, and granted Petitioner's motion for extension of time. (Doc. 15).

On December 22, 2008, Petitioner filed a second objection and three new grounds for relief. (Doc. 16). Petitioner's three new claims are: (1) Brady violations—Prosecutorial misconduct; (2) Ineffective assistance of conspiring or colluding counsel; (3) Unconstitutional sentence resulting from Brady violation, judicial misconduct. Respondent moved to strike Petitioner's objections on December 29, 2008. (Doc. 18). Petitioner subsequently moved for leave to amend his petition to include these new grounds. (Doc. 19; see also Doc. 20 (Respondent's Opposition) and Doc. 21 (Petitioner's Reply)).

II. STANDARD OF REVIEW

28 U.S.C. § 636(b)(1) requires a district court to "make a de novo determination of those portions of the report . . . or recommendations [of a magistrate judge] to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."

III. MOTION TO STRIKE PETITIONER'S OBJECTIONS TO R & R

Respondent moves to strike Petitioner's objections and argues that Petitioner has not actually objected to the Magistrate Judge's R & R, but instead presented new claims for relief. (Doc. 18). Petitioner responds with a motion for leave to amend his petition. (Doc. 19). Respondent's contention presents the Court with two questions: (1) Did the Petitioner appropriately object to the Magistrate Judge's R & R? (2) If so, to what portions of the R & R did the Petitioner object? In answering these questions, the Court takes into account Petitioner's status as a pro se litigant unfamiliar with the intricacies of the legal process and affords him the appropriate degree of liberal interpretation. See, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

Petitioner filed his first objection, along with a motion for extension of time to file objections, on October 30, 2008. (Doc. 14). Petitioner's first objection did not specify the portions of the R & R to which he objected, but rather asked for more time to frame objections. For good cause, this Court vacated its prior order adopting the R & R, granted Petitioner's motion, and reopened the case. (Doc. 15). In so ruling, the Court recognized that Petitioner intended to object to the R & R, and was justified in his time delay in voicing his objection. The Court understood that Petitioner in fact objected to the R & R and would make more specific objections at a later date.

Petitioner filed his second objection on December 22, 2008. (Doc. 16). Respondent argues that Petitioner's December 22 filing is not really an objection at all, but an improperly titled motion to amend the petition. (Doc. 18). While it is true that Petitioner presented new claims not presented to the Magistrate Judge, Petitioner also reasserted his "[attempt] to voice his objections." (Doc. 16 at 1, (emphasis omitted)). It is clear that Petitioner did not understand that an objection to a Magistrate Judge's R & R normally specifies those portions objected to, and the reasons for so objecting. The purpose of an objection is not to present new claims, but to argue against the findings, conclusions, and recommendations of the R & R based on the law and the record.

However, it is equally clear that Petitioner in fact intended to object to the R & R. Petitioner twice submitted that he was objecting to the Magistrate Judge's recommendation. When he realized that his additional claims were not properly brought, he complied with the rules by subsequently filing a "Proper Motion to Amend...

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