Walker v. Warden, Case No. 1:13cv159

• Decision Date: 15 March 2016
• Docket Number: Case No. 1:13cv159
• Parties: Gary D. Walker, Petitioner, v. Warden, Lake Erie Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

Gary D. Walker, Petitioner, v. Warden, Lake Erie Correctional Institution, Respondent.

Case No. 1:13cv159

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

March 15, 2016

Judge Michael R. Barrett

OPINION & ORDER

This matter is before the Court upon the May 26, 2015 Magistrate Judge's Report and Recommendation ("R&R") recommending that Grounds One and Two be dismissed with prejudice (Doc. 60) and the July 17, 2015 Magistrate Judge's Substituted R&R recommending that (1) the Court grant Petitioner a conditional writ of habeas corpus on Grounds for Release One and Two, and ordering Petitioner's release unless he is granted a new direct appeal of the conviction at issue in this case; and (2) Petitioner's Motion for Sanctions (Doc. 70) be denied. (Doc. 79). Notice was given to the parties under 28 U.S.C. § 636(b)(1)(C). On July 21, 2015 Petitioner filed objections to the Substituted R&R. (Doc. 80). Then, on July 24, 2015, Petitioner filed revised objections to the Substituted R&R. (Doc. 81). Respondent filed objections on July 31, 2015. (Doc. 83). Petitioner filed a response to Respondent's objections. (Doc. 84).

Also before the Court are Petitioner's Objections (Doc. 40) to the Magistrate Judge's Decision and Order denying Judicial Notice (Doc. 38); and Petitioner's Objections to the Magistrate Judge's Order denying his Motion to Strike (Doc. 72).

I. BACKGROUND

Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner brought four grounds for relief, all of which are based upon the denial of appellate counsel. This Court previously adopted the April 7, 2014 Magistrate Judge's R&R and April 30, 2014 Supplemental R&R recommending that Grounds Three and Four be dismissed with prejudice. (Doc. 39). However, this Court returned the matter to the Magistrate Judge for further analysis of Grounds One and Two. (Id.) Grounds One and Two, which have been combined by Petitioner, are as follows:

The Petitioner, Gary D. Walker, was completely deprived of his right to appellate counsel on his initial appeal of right in Ohio's Fifth District Court of Appeals, Case No. 09CA0088, in violation of the Sixth and Fourteenth Amendment [sic] to the United States Constitution.

(Doc. 54, PAGEID # 1035).

In his May 26, 2015 R&R, the Magistrate Judge recommended that Grounds One and Two be dismissed with prejudice. (Doc. 60). In that R&R, the Magistrate Judge found that Petitioner waived his right to counsel on appeal by failing to request counsel. (Doc. 60, PAGEID #1301). However, in his July 17, 2015 Substituted R&R, the Magistrate Judge recommends that this Court grant Petitioner's writ of habeas corpus on Grounds One and Two. (Doc. 79). The Magistrate Judge relied upon certain documents which were filed after this matter was recommitted to the Magistrate Judge. In his July 17, 2015 Substituted R&R, the Magistrate Judge highlighted the significant details of these documents:

On July 1, 2009, Walker filed, pro se, a Notice of Appeal of his conviction (Doc. No. 55-1, Ex. 1, PageID 1066-69). At exactly the same time, he filed, pro se, a Motion to Waive Payment of Deposit with an attached Affidavit ofIndigency and a Fifth District Court of Appeals Docketing Statement. Id. at Ex. 2, PageID 1070-80. As part of those documents, he represented to the Court of Appeals that he could not "afford to pay for any legal services, . . ." Id. at PageID 1072. As part of the Fifth District's forms for filing, he signed an Affidavit of Indigency which stated in part:

1. I am financially unable retain private counsel without substantial hardship to me or my family.

2. I understand that I must inform the public defender or appointed attorney if my financial situation should change before the disposition of the case(s) for which representation is being provided.

3. I understand that if it is determined by the county, or by the Court, that legal representation should not have been provided, I may be required to reimburse the county for the costs of representation provided. Any action filed by the county to collect legal fees hereunder must be brought within two years form [sic] the last date legal representation was provided.

4. I understand that I am subject to criminal charges for providing false financial information in connection with the above application for legal representation pursuant to Ohio Revised Code Sections 120.05 and 2921.13.

Id. at PageID 1074 (emphasis added). Immediately below Walker's signature and the notarization appears a place for the judge's signature subscribing to the finding that "I have determined that the applicant meets the criteria for receiving court appointed counsel." Id. There is no judicial signature in the place provided, but the Inmate Demand Statement attached from the prison cashier leaves no doubt that Walker is indigent. Id. at PageID 1075-76. As part of the same filing, there is a Fifth District Court of Appeals Docketing Statement which asks at Question 8 "Was counsel appointed for appeal? Walker answered that question "no," informing the court of appeals that the trial court had not appointed counsel for appeal. Id. at PageID 1078.

(Doc. 79. PAGEID #1507-1508). The Magistrate Judge then explained:

The quoted documents completely eliminate the premise of the Magistrate Judge's prior recommendations on Grounds One and Two. They make it plain that Walker did request appointment of counsel on direct appeal usingthe forms prescribed by the Fifth District Court of Appeals for that purpose. Thus he did not forfeit his right to counsel on direct appeal by not making the request for counsel required by Ohio R. Crim. P. 32(B). Having made the request, he was not furnished counsel on this first direct appeal, as is required by the United States Constitution. Counsel must be appointed on appeal of right for indigent criminal defendants. Douglas v. California, 372 U.S. 353 (1963). To the extent the Fifth District's denial of relief was premised on a finding that Walker never applied for appointment of counsel, that finding "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2).

(Doc. 79, PAGEID #1509).

Petitioner objects to the July 17, 2015 Magistrate Judge's Substituted R&R to the extent that the Magistrate Judge recommends that Petitioner be granted a new appeal with the appointment of counsel. Petitioner argues that granting Petitioner a new appeal six years after the constitutional violations will not cure the constitutional errors. Petitioner argues that he is entitled to immediate and unconditional discharge from custody.

Respondent objects to the July 17, 2015 Magistrate Judge's Substituted R&R on the following grounds: (1) there is no record to support the finding that Petitioner requested the appointment of counsel on direct appeal using the forms prescribed by the Fifth District Court of Appeals for that purpose; (2) Petitioner failed to request the appointment of counsel on direct appeal; (3) Assistant Attorney General Gene Park had no reason to file the Motion to Waive Payment of Deposit or the Docketing Statement; and (4) the failure to appoint counsel is not cause for his procedural default because there is no clearly established Supreme Court precedent requiring appellate counsel inform Petitioner that he could appeal to the Supreme Court of Ohio.

II. ANALYSIS

A. Standards of Review

a. Objections to Magistrate Judge's R&R

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 decision; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; see also 28 U.S.C. § 636(b)(1).

b. AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for a writ of habeas corpus may only be granted if the adjudication of the underlying state court action 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 one "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(d)(1), (2).

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). An "unreasonable application" occurs when "a state court decision unreasonably appliesthe law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409

B. Procedural default

Respondent argues that Petitioner has procedurally defaulted his claims in Grounds One and Two. In a footnote, Respondent also states that Petitioner has not properly exhausted his claims. (See Doc. 83, PAGED #1572).

Petitioner timely filed his first pro se notice of appeal to the Fifth District Court of Appeals on July 1, 2009. (Doc. 7-1, PAGEID #175). The appeal was assigned number 09-CA-88. However, on September 4, 2009, Walker filed a pro se motion to dismiss appeal, which states:

Gary Walker, Appellant, moves this Court for an order dismissing the appeal currently pending before this Court. Mr. Walker was unable to meet the filing deadline as mandated and furthermore has not exhausted his vital claims in the common pleas court to date. Therefore it would be premature to file the instant appeal.

[R]elief is accordingly sought.

(Doc. 7-1, PAGEID #176). Petitioner then filed a number of pro se moti...