Sexton v. Wainright

JASON S. SEXTON, Petitioner, v. LYNEAL WAINRIGHT, Warden, Marion Correctional Institution Respondent.

Case No. 2:18-cv-424

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

April 5, 2021

District Judge Sarah D. Morrison

Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court after remand by the United States Court of Appeals for the Sixth Circuit. Sexton v. Wainwright, 968 F.3d 607 (6^th Cir. 2020). On appeal the circuit court granted a certificate of appealability only as to Ground One (ECF No. 31), thereby leaving in place this Court's decision that Grounds Two and Three were barred by the statute of limitations codified.

As to Ground One, which the circuit court characterized as Sexton's appeal-based claim, it found the Petition was timely because filed within one year of the state court action claimed to be unconstitutional: denial of a delayed appeal. It vacated the judgment and remanded the case for consideration of Ground One on the merits. 968 F.3d at 614.

After the mandate issued, the Court ordered Respondent to file an answer and set a date for Petitioner to file a reply (ECF No. 39). Both parties complied (ECF Nos. 40, 42). The Magistrate Judge then filed a Report and Recommendations recommending dismissal but also issuance of a certificate of appealability (ECF No. 44). The Warden and Petitioner have both objected (ECF Nos. 45, 50). District Judge Morrison has recommitted the case for reconsideration in light of the Objections (ECF No. 49).

The sole Ground for Relief before this Court on remand is:

Ground One: Mr. Sexton was denied due process and equal protection of the law when the Franklin County Court of Appeals denied his motion for leave to file a direct appeal, and appointment of counsel for that appeal, a violation of the Fourteenth Amendment to the United States Constitution.

Analysis

Respondent's Objections

Statute of Limitations

Respondent persists in arguing Ground One is barred by the statute of limitations. While the State is free to preserve the issue and continue to hope that some day the Supreme Court may adopt its position, this Court is bound under the mandate rule to follow the Sixth Circuit's decision. Based on that decision, the Court should conclude Ground One is not barred by the statute of limitations.

Cognizability

In the Return, the State argued that Ground One was not cognizable in habeas because a motion for a delayed appeal is a collateral proceeding and errors in such proceedings are not cognizable in habeas (ECF No. 40, PageID 345, citing Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1986); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002); Alley v. Bell, 307 F.3d 380, 387 (6th Cir. 2002)).

The Report dealt with this defense summarily by hypothesizing clear constitutional violations in the conduct of a delayed direct appeal, e.g., by allowing the appeal and then denying appointment of counsel or a free transcript (Report, ECF No. 44, PageID 385, citing Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v. California, 372 U.S. 353 (1963)).

Respondent objects that this analysis improperly conflates the procedure for granting or denying a delayed appeal with the process that is constitutionally mandated if a delayed appeal is granted (Objections, ECF No. 45, PageID 397). Respondent again relies on Kirby, Roe, and Alley, along with numerous decisions of other Magistrate Judges of this Court. Id. at PageID 397-98.

In the prior appeal in this case, the Sixth Circuit did not comment on the cognizability of Ground One and this Court is not advised of whether the State attempted to defend this Court's prior judgment by making this argument. The circuit court's opinion seems to imply cognizability. It wrote:

On remand, Sexton will need to show that the Ohio Court of Appeals failed to provide him with due process or equal protection simply because it declined to allow a years-late appeal. That will be a difficult argument to make, for courts of appeals have ample reasons to refuse to hear late appeals, even meritorious ones. The hill is particularly steep given the standard for granting habeas relief. See 28 U.S.C. § 2254(d). But these aspects go to the merits, not timeliness.

968 F.3d at 613. While this language appears to imply cognizability of Ground One, the Magistrate Judge cannot assume the Sixth Circuit thereby intended to overrule a line of published precedent.

Kirby is the foundational precedent in this circuit. In that capital case a Tennessee prisoner claimed he was denied effective assistance of counsel in a state post-conviction proceeding. The Sixth Circuit did not reach the merits of that claim, holding instead Kirby's claims could not be brought in habeas corpus. 794 F.2d at 246. The circuit court relied on an analogy to Preiser v. Rodriquez, 411 U.S. 475 (1973), where the Supreme Court held release from custody could not besought in an action under 42 U.S.C. § 1983. Roe v. Baker, 316 F.3d 557 (6^th Cir. 2002), reached the same result, declining to hear on the merits a claim that the state court of appeals failed to provide a full and fair hearing on appeal from denial of a post-conviction petition. Id. at 571. Finally, in Alley v. Bell, 370 F.3d 380 (6^th Cir. 2002), the court held "error committed during state post-conviction proceedings can not [sic] provide a basis for federal habeas relief." Id. at 387.

Other judges of this Court have reached the same result. In Quillen v. Marion Corr. Inst, 2013 U.S. Dist. LEXIS 9933, *54-57 (S.D. Ohio 2013), Magistrate Judge Karen Litkovitz held that petitioner's claim that denial of a delayed appeal deprived him of due process and/or access to court did not state a claim cognizable in habeas. Judge Litkovitz cited other holdings to that effect by other judges of this Court: Kelley v. Brunsman, 625 F. Supp.2d 586, 598-99 (S.D. Ohio 2009); Jones v. Warden, Chillicothe Corr. Inst., No. 1:07cv349, 2008 U.S. Dist. LEXIS 15538, 2008 WL 618639, at *1, *7 (S.D. Ohio Feb. 29, 2008) (Dlott, J.; Black, M.J.); Korbel v. Jeffreys No. 2:06cv625, 2007 U.S. Dist. LEXIS 79362, 2007 WL 3146248, at *3 (S.D. Ohio Oct. 24, 2007) (King, M.J.) (Report & Recommendation), adopted, 2008 U.S. Dist. LEXIS 5179, 2008 WL 207932 (S.D. Ohio Jan. 24, 2008) (Marbley, J.). In Crenshaw v. Hart, 2008 U.S. Dist. LEXIS 115133 (S.D. Ohio 2008), then¹ Magistrate Judge Black found a delayed appeal claim non-cognizable on the basis of Kirby, Alley, and Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007).

On reconsideration, the Magistrate Judge agrees with Respondent that he erred in finding Ground One to be cognizable in habeas corpus and now recommends Ground One be dismissed without prejudice for failure to state a claim upon which habeas corpus relief can be granted.

Sexton's Objections

Sexton's First Objection: State Court Decision Not on the Merits

Having concluded in the original Report that Ground One was cognizable, the Magistrate Judge found it nevertheless to be without merit because Sexton could point to no Supreme Court precedent holding that denial of a delayed appeal twenty years after the time for appeal of right expired constituted either a denial of due process or equal protection (ECF No. 44, PageID 389-91). Thus the Report recommended denying Ground One on the basis of deference to the state court of appeals under 28 U.S.C. § 2254(d)(1). Id.

Sexton objects that the Court should not defer to the Tenth District Court of Appeals because it did not decide his claim on the merits (Objections, ECF No. 50, PageID 409). This is so, he says, because it did not give any case citations or spell out its reasoning. Id. citing Schoenberger v. Russell, 290 F.3d 831 (6^th Cir. 2002). The Schoenberger court held:

Although petitioner raised a claim that admission of this testimony violated both due process and his right to a fair trial, the Ohio court of appeals did not directly address these constitutional issues. In the absence of a state court decision, we conduct an independent review of federal law to determine if the state court either contravened or unreasonably applied clearly established federal law. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000).

290 F.3d at 835. Because Schoenberger is a published decision, we are bound to follow it unless it has been superseded by Supreme Court precedent. However, the Supreme Court has now held that a state court decision can constitute an "adjudication on the merits" entitled to deference under 28 U. S.C. § 2254(d)(1) even if the state court does not explicitly refer to the federal claim or to relevant federal case law. In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court held:

By its terms § 2254(d) bars relitigation of any claim "adjudicated on the merits" in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2). There is no text in the statute requiring a statement of reasons. The statute refers only to a "decision," which resulted from an "adjudication." As every Court of Appeals to consider the issue has recognized, determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning. See Chadwick v. Janecka, 312 F.3d 597, 605-606 (CA3 2002); Wright v. Secretary for Dept. of Corrections, 278 F.3d 1245, 1253-1254 (CA11 2002); Sellan v. Kuhlman, 261 F.3d 303, 311-312 (CA2 2001); Bell v. Jarvis, 236 F.3d 149, 158-162 (CA4 2000) (en banc); Harris v. Stovall, 212 F.3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196 F.3d 1174, 1177-1178 (CA10 1999); James v. Bowersox, 187 F.3d 866, 869 (CA8 1999). And as this Court has observed, a state court need not cite or even be aware of our cases under § 2254(d). Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). Where a state court's decision is unaccompanied by an explanation, the habeas petit

...