IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAWITT N. DERESSE,

Petitioner,

vs. Civil Action 2:10-CV-1083

Judge Smith

Magistrate Judge King

WARDEN, ROSS CORRECTIONAL 

INSTITUTION,

Respondent.

OPINION AND ORDER

On May 20, 2011, the United States Magistrate Judge

recommended that respondent’s motion to dismiss be granted and that

petitioner’s motion to excuse his procedural default be denied. Report

and Recommendation, Doc. No. 7. This matter is now before the Court on

petitioner’s objection to that recommendation. Objection, Doc. No. 11. 

Pursuant to the provisions of 28 U.S.C. §636(b); Fed. R. Civ. P. 72(b),

the Court will consider the matter de novo.

This is a habeas corpus action under the provisions of 28

U.S.C. §2254, in which petitioner challenges his convictions, based on

his guilty pleas, on drug-related charges. Petitioner presented his

challenges to the state court of appeals in a delayed direct appeal. 

After his conviction was affirmed on appeal, petitioner, acting without

the assistance of counsel, attempted to file a timely appeal to the Ohio

Supreme Court. His filing was incomplete, however, and the Clerk of the

Ohio Supreme Court returned that filing to him. Petitioner explains

Case: 2:10-cv-01083-GCS-NMK Doc #: 12 Filed: 08/09/11 Page: 1 of 4 PAGEID #: <pageID>
that he mailed the missing documents separately to the Ohio Supreme

Court but, because his earlier attempted filing had been returned to him

unfiled, those documents were also returned to petitioner by the Clerk

of the Ohio Supreme Court.1

The respondent filed a motion to dismiss the petition based

on procedural default, Doc. No. 6. Acknowledging that his attempted

appeal to the Ohio Supreme Court was defective, petitioner asked that

the Court excuse his procedural default, Doc. No. 5. 

The Magistrate Judge recommended that the petition be

dismissed as procedurally defaulted, reasoning as follows:

Petitioner argues that the Clerk of the Ohio

Supreme Court should not have returned his first,

incomplete, filing to him. Rather, petitioner

argues, the clerk should have filed the incomplete

notice of appeal and permitted petitioner to later

remedy the defect. “A technicality should not bar

review of this petition.” Motion to Excuse the

Procedural Default, p. 6. 

This Court concludes that it was not the

Clerk of the Ohio Supreme Court that caused

petitioner’s procedural default; rather, his

default was a consequence of petitioner’s own

failure to follow the express directions given to

him by the clerk. In the clerk’s January 27,

2010 letter to petitioner, the clerk returned

petitioner’s notice of appeal, unfiled, and

provided to petitioner this advice:

In order to timely appeal a December 17,

2009 court of appeals decision, your notice

of appeal, corrected memorandum in support

of jurisdiction, and affidavit of indigency

are due in the Clerk’s Office no later than

February 1, 2010. Should this deadline

pass, please see the provision for delayed

appeal under Rule 2.2(A)(4) of the enclosed

copy of the Rules of Practice.

Exhibit A, attached to Motion to Excuse Procedural

1

Petitioner’s subsequent motion for delayed appeal was denied by the

Ohio Supreme Court.

2

Case: 2:10-cv-01083-GCS-NMK Doc #: 12 Filed: 08/09/11 Page: 2 of 4 PAGEID #: <pageID>
Default. Petitioner simply did not follow these

directions. Nothing in the record indicates that

any external factor impeded Petitioner’s ability

to file a proper, timely appeal to the Ohio

Supreme Court. Petitioner’s default in this

regard is therefore attributable only to him.

Report and Recommendation, pp. 4-5. 

In his objection, petitioner presents the same argument

presented to and rejected by the Magistrate Judge, with one

modification. Petitioner now asserts that the Clerk of the Ohio Supreme

Court should have held his original, admittedly defective, filing in

“abeyance” pending his submission of the missing documents. 

Particularly is this so, petitioner contends, in light of the fact that

the deficiency in his original filing is a common deficiency.

This Court agrees with the Magistrate Judge that petitioner’s

claims were procedurally defaulted. The procedural rules governing the

filing of direct appeals with the Ohio Supreme Court are adequate and

independent rules with which a habeas corpus petitioner must comply.

Although petitioner may disagree with the wisdom of those rules, the

fact remains that petitioner failed to comply with those rules. That

failure necessarily leads to the conclusion that his claims have been

procedurally defaulted for purposes of federal habeas corpus review. 

See Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004)(a habeas corpus claim

is procedurally defaulted where that claim has not been presented to the

state courts in accordance with the state’s procedural rules). 

Moreover, petitioner has failed to demonstrate cause for his default and

actual prejudice; he has likewise failed to demonstrate that enforcing

this procedural default will result in a fundamental miscarriage of

justice. Under these circumstances, the Court cannot consider the

merits of petitioner’s claims.

3

Case: 2:10-cv-01083-GCS-NMK Doc #: 12 Filed: 08/09/11 Page: 3 of 4 PAGEID #: <pageID>
Petitioner’s Objection, Doc. No. 11, is DENIED. The Report

and Recommendation, Doc. No. 7, is ADOPTED and AFFIRMED. Petitioner’s

motion to excuse his procedural default, Doc. No. 5, is DENIED. 

Respondent’s motion to dismiss, Doc. No. 6, is GRANTED.

The claims asserted in this action are DISMISSED as

procedurally defaulted.

The Clerk shall enter FINAL JUDGMENT.

 s/George C. Smith George C. Smith, Judge

 United States District Court

4

Case: 2:10-cv-01083-GCS-NMK Doc #: 12 Filed: 08/09/11 Page: 4 of 4 PAGEID #: <pageID>