Shuaib A. Haji Mohamed, Plaintiff v. Warden Tim Buchanan, Defendant. (2022)

ORDER

This is a pro se state prisoner habeas corpus case under 28 U.S.C. § 2254(d). Following referral to Magistrate Judge Jonathan Greenberg and the filing of his Report & Recommendation, (Doc. 13), the Petitioner filed Objections thereto. (Doc. 16).

In a February 1, 2022 Order based on my de novo review of Judge Greenberg's Report & Recommendation, I overruled the Petitioner's Objections and adopted the Report & Recommendation. (Doc. 21).

Petitioner then filed a Motion to Alter/Amend Order on February 18, 2022, asking that I reconsider my decision pursuant to Fed. R. Civ. P. 59(e). Citing Gibbs v. Huss, 12 F.3d 544 (6th Cir. 2021), Petitioner noted that if a state procedural ground is not adequate, it does not foreclose habeas review. (Doc. 22, pgID 1387).

Magistrate Judge Greenberg again filed a Report & Recommendation, proposing that I deny Petitioner's Motion to Alter/Amend. (Doc. 27). Petitioner filed Objections to that Report & Recommendation. (Doc. 28).

I issued an opinion on August 1, 2022, explaining that I was inclined to adopt the Report & Recommendation in all respects but that I believed there was a possible additional basis for denying and dismissing the Petition, namely, that Petitioner committed procedural default when he did not file a timely motion for leave to file a cross-appeal in the Ohio Supreme Court. (Doc. 29, pgID 1420). I ordered the Petitioner to show cause why he did not do so.

On August 12, 2022, the Petitioner filed a Response. (Doc. 30). The Response focused on the State's failure to provide Petitioner with notice of its appeal. (Id., pgID 1424).

Ohio Supreme Court Rule 7.01 addresses the limitations period for filing an appeal or cross-appeal. Section (A)(1)(a)(i) provides: “To perfect a jurisdictional appeal from a court of appeals to the Supreme Court ․ the appellant shall file a notice of appeal in the Supreme Court within forty-five days from the entry of the judgment being appealed.” Ohio S. Ct. Prac. R. 7.01.

Regarding cross-appeals, Section (A)(2)(a) states: “If a party timely files a notice of appeal in the Supreme Court, any other party may file a notice of appeal or cross-appeal in the Supreme Court within the time prescribed by division (A)(1) of this rule or ten days after the first notice of appeal was filed, whichever is later.”

It was incumbent on Petitioner to seek Ohio Supreme Court review of his assignments of error within forty-five days after judgment or within ten days of the State's notice of appeal.

He did not do so. Instead, he only sought leave to file a delayed appeal on May 9, 2018. (Id.).¹

The Petitioner does not indicate when he received a copy of the State's direct appeal, which it had filed on May 2, 2016. (Doc. 5-1, pgID 294). Regardless, it is up to Petitioner to show that his effort to file a cross-appeal came within the applicable limitations period. He has not done so. Thus, the default bar precludes consideration of his Petition on its merits.

His Response to the Show Cause Order (Doc. 30) that this is not so makes two unavailing contentions. First, he argues that imposing that bar vis-a-vis his untimely effort to secure Supreme Court review would be to invent a new procedural rule. (Id., pgID 1424). I disagree: the applicable Ohio Supreme Court Rule does, in fact, address cross-appeals, providing that Petitioner must have filed one within the original forty-five day limitations period or within ten days of the date on which the State filed its notice of appeal. Ohio S. Ct. Prac. R. 7.01(A)(2)(a).

The Petitioner's failure to show that he sought to file a cross-appeal within such period precludes review of the Petition's merits.

Second, Petitioner points to his May 9, 2018 delayed appeal as “satisfying this Court's concerns.” (Id., pgID 1424). It does not because that effort to file a cross-appeal was untimely.

In so concluding, I find that the State's Response to the Show Cause Order (Doc. 32) correctly interprets and asks me to apply, as I do, the Sixth Circuit's decisions in Maupin v. Smith, 785 F.2d 135,138 (6th Cir. 1968) and Bonilla v. Hurley, 370 F.3d 194 (6th Cir. 2004). Namely, that the Petitioner's completely unexplained failure to file a cross-appeal within the limitations period set forth in Ohio Supreme Court Rule 7.01 constituted a preclusive procedural default.

Conclusion

The Petitioner committed a procedural default when he did not seek leave to file a delayed cross-appeal in a timely fashion. He has shown neither cause for nor prejudice from his default. That default, in turn adds further support to my February 1, 2022 Order rejecting the Petitioner's Objections to Judge Greenberg's Report & Recommendation that I deny and dismiss the Petitioner's § 2254(d) Petition for habeas corpus relief.

It is, accordingly, hereby

ORDERED THAT:

1. The Order entered Feb. 1, 2022 overruling Petitioner's Objections and adopting the Magistrate Judge's Report & Recommendation (Doc. 21) be, and the same hereby is confirmed;

2. The Petitioner has failed to show cause for his procedural default vis-a-vis his filing of a delayed cross-appeal in the Ohio Supreme Court;

3. The Magistrate Judge's Report & Recommendation (Doc. 27) be, and the same hereby is adopted as the order of this court;

4. The Petition for a Writ of Habeas Corpus (Doc. 1) be, and the same hereby is denied and dismissed; and

5. Jurists of reason could not rationally dispute my rationale for this Order or its result.

Accordingly, I decline to grant a Certificate of Appealability.

So ordered.

FOOTNOTES

1.   Petitioner's Response states that he filed his notice of appeal “[o]n or about June 12, 2018.” (Doc. 30, pgID 1424). But the Ohio Supreme Court docket shows that he filed his notice of appeal on May 9, 2018. (See Case No. 2018-0651). Even accepting Petitioner's date as accurate, his filing would not comply with the limitations period, as he submitted it almost two years after the State appealed.

James G. Carr Sr. U.S. District Judge