IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIE MAPP, CASE NO. 2:12-cv-1039

Petitioner, JUDGE EDMUND A. SARGUS, JR.

v. Magistrate Judge Kemp

STATE OF OHIO,.

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2254. This matter is before the Court on petitioner’s original

pleading, styled as a complaint (Doc. 4), his “Memorandum in Support of Plaintiff

Willie Mapp in the Recharacterizing Petition Under 28 U.S.C. 2254" (Doc. 9),

respondent’s return of writ, and the exhibits attached to the return. For the reasons that

follow, the Magistrate Judge RECOMMENDS that petitioner’s claims be DISMISSED.

 I. PROCEDURAL HISTORY

This case stems from a second indictment returned against petitioner by the

Union County, Ohio grand jury. The first indictment, filed on March 27, 2008, charged

petitioner with thirteen counts of sexual battery, all involving inmates at the Ohio

Reformatory for Women, where petitioner was employed as a corrections officer. That

case was withdrawn by the prosecutor when witnesses failed to appear for trial. Return

of Writ, Exhibit 3.

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After the dismissal of the first case, the grand jury returned a second indictment

in February, 2009. The indictment again charged petitioner with thirteen counts of

sexual battery. Petitioner pleaded not guilty and was tried by a jury. On August 31,

2010, the jury convicted him of eight counts of sexual battery. On November 2, 2010,

the trial judge overruled post-judgement motions for a mistrial, a new trial, and for

acquittal. Return of Writ, Exhibit 28. In a journal entry filed on November 16, 2010, the

trial judge sentenced petitioner to an aggregate of twenty-four years in prison,

consisting of three years on each of the eight counts, run consecutively, plus five years

of post-release control. He was also required to register as a Tier III sex offender. 

Return of Writ, Exhibit 30.

Represented by new counsel, petitioner timely appealed his conviction to the

Court of Appeals for the Third Appellate District. He raised four assignments of error,

as follows:

1. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S

MOTION FOR A MISTRIAL, MOTION FOR A NEW TRIAL, AND A

RENEWED MOTION FOR ACQUITTAL BASED ON THE APPELLEE’S

FAILURE TO SECURE AND PRESERVE KEY EVIDENCE..

2. APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED WHEN

THE APPELLEE WITHHELD POSSIBLE BRADY EVIDENCE..

3. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S

MOTION TO DISMISS THE MATTER ON SPEEDY TRIAL GROUNDS.

4. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO

CONSECUTIVE SENTENCES.

. 

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Return of Writ, Exhibit 33. In a decision dated September 6, 2011, the Third District Court

of Appeals overruled all four assignments of error and affirmed petitioner’s conviction. 

Return of Writ, Exhibit 35; State v. Mapp, 2011 WL 3890522 (Union Co. App. Sept. 6,

2011). 

Petitioner did not timely appeal that decision to the Ohio Supreme Court. He did,

however, filed a motion for leave to file a delayed appeal. Return of Writ, Exhibit 38. He

asserted as cause repeated closings of the law library at his institution. The Ohio

Supreme Court granted his motion to file a delayed appeal. Return of Writ, Exhibit 39;

State v. Mapp, 131 Ohio St.3d 1408 (2011). However, petitioner did not file a

memorandum in support of jurisdiction, and the appeal was dismissed for failure to

prosecute. Return of Writ, Exhibit 40; State v. Mapp, 131 Ohio St.3d 1462 (2012).

On January 3, 2012, while his direct appeal was pending, petitioner filed an

untimely motion with the Third District Court of Appeals to reopen his appeal under

Appellate Rule 26(B). He asserted, as cause for his untimely filing, the fact that he had

incorrectly addressed the motion, and that by the time the postal service returned it to

him, the 90-day period for filing such a motion had passed. Return of Writ, Exhibit 41. 

He sought to raise two claims of ineffective assistance of counsel, one relating to

appellate counsel’s failure to argue an issue about a speedy trial violation, and the

second relating to appellate counsel’s failure to make specific arguments about the

imposition of consecutive sentences. In an entry filed on February 15, 2012, the appellate

court overruled his motion, noting that it was not timely filed and that “an incorrectly

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addressed envelope does not show good cause for the application being filed untimely. 

See App.R. 26(B)(1) and 26(B)(2)(b).” Return of Writ, Exhibit 43. Alternatively, the state

appellate court held that the two assertions of error lacked merit. Petitioner filed a

timely appeal of that decision, but the Ohio Supreme Court dismissed the appeal “as not

involving any substantial constitutional question.” Return of Writ, Exhibit 47.

On November 9, 2012, petitioner filed a motion for leave to proceed in forma

pauperis in this Court. He did not file a pleading with that motion. In response to a

Court’s order filed on November 14, 2012, pointing out this deficiency, petitioner filed a

complaint, which the Court characterized as a petition for a writ of habeas corpus

because it raised claims relating to the validity of petitioner’s conviction and sentence. 

The Court gave petitioner the opportunity to object to this characterization, but he did

not. Rather, on March 4, 2013, he filed a document which he titled “Memorandum in

Support of Plaintiff Willie Mapp in the Recharacterizing Petition under 28 U.S.C. 2254.” 

(Doc. 9). The attachment to that document is the same memorandum in support of

jurisdiction which he filed with the Ohio Supreme Court. See Return of Writ, Exhibit 45.

He has also filed multiple motions for the appointment of counsel.

It is unclear if petitioner is intending to raise all of the claims found in his

complaint as well as the ones found in his supplemental filing. The latter filing raises

only those two claims which the Third District Court of Appeals refused to hear when it

dismissed petitioner’s Rule 26(B) motion to reopen as untimely. The former raises a

number of fairly vague claims, which, as petitioner has stated them, are:

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1. Ineffective assistance of counsel;

2. Key evidence of testimony;

3. Allied offense consecutive sentences that resulted in 24 years as opposed to (1)

cc 3 yrs;

4. Violation of the 8th, 4th 14th Amendments;

5. Continuous errors of trial court;

6. Was not allowed sovereign immunity as being a State of Ohio (DRC)

employee;

7. Request for Supreme Court to hear case on merits;

8. Request this District Court to modify sentence on merits 2929.41;

9. Request this court to modify consect (sic) sentence to concurrent.

As relief, he asks the Court to remand the case to the state trial court for a new trial on

the merits, and, again, to modify his sentences so that they run concurrently. He has

presented no supporting argument in connection with any of these claims. See Doc. 4.

As this procedural history demonstrates, petitioner was not successful in

presenting any of his claims to the Ohio Supreme Court for a review of their merits. 

Respondent argues that all of petitioner’s claims, whether those found in his complaint

or those asserted in his supplemental filing, have been procedurally defaulted. For the

reasons which follow, this Court agrees and will recommend that the case be dismissed

for that reason.

II. FACTS

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The facts of this case are not particularly important in deciding if petitioner has

procedurally defaulted all of his claims. A short summary can be found in the state

court of appeals’ decision, see State v. Mapp, 2011 WL 3890522 (Union Co. App. Sept. 6,

2011). It suffices to say that petitioner was indicted for and convicted of multiple counts

of sexual battery based upon the fact that, while a corrections officer at the ORW, he

forced several female inmates into a restroom and directed them to perform oral sex on

him. The first time the case came up for trial, a number of the victims, who had been

subpoenaed, called the prosecutor expressing travel difficulties, leading the State to

dismiss the case. It had taken four years to obtain the initial indictment and another

few months passed until the second indictment was returned. Those circumstances led

to some speedy trial challenges. Also, the state presented conflicting evidence about

whether there were any videotapes of the restroom in question. The trial judge

eventually struck all of the testimony about videotapes, but the possible existence or

destruction of such tapes was one of the issues which petitioner raised in state court. 

Finally, there was the matter of consecutive sentences; the trial court chose an

intermediate sentence on each count (the maximum sentence for sexual battery is five

years) but ran those sentences consecutively. Petitioner also took issue with that

decision in some of his later state court filings.

III. PROCEDURAL DEFAULT

The term “procedural default” has come to describe the situation where a person

convicted of a crime in a state court fails (for whatever reason) to present a particular

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claim to the highest court of the State so that the State has a fair chance to correct any

errors made in the course of the trial or the appeal before a federal court intervenes in

the state criminal process. Procedural default can be a fairly complicated doctrine,

involving a number of court-made rules and exceptions, but the basic premise is simple

and is reflected in the language Congress has used in 28 U.S.C. §2254. 

Under §2254, a federal court may grant relief to a state prisoner only if that

person is being held in custody in violation of the Constitution or law of the United

States - that is, that the prisoner’s conviction or sentence was unlawful under federal

law. In order for a federal court to decide any such claims on their merits, “the state

prisoner must give the state courts an opportunity to act on his claims before he

presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999). That is so because §2254(b) states that an application for a writ of

habeas corpus filed by someone in petitioner’s position “shall not be granted” unless

“the applicant has exhausted the remedies available in the courts of the State ....” 

So what does it mean to exhaust such remedies? O’Sullivan, a decision from the

United States Supreme Court, held that “state prisoners must give the state courts one

full opportunity to resolve any constitutional issues by invoking one complete round of

the State's established appellate review process.” Id. at 845. In particular, in states like

Ohio, where the last avenue of review is a discretionary appeal to the state’s highest

court, a prisoner must ask that court to review his or her claims as long as that is “part

of the ordinary appellate review procedure ....” Id. at 847. 

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Just asking for such review is not enough, however. The habeas petitioner must

do so in a way that gives the state courts a fair opportunity to rule on the federal law

claims being asserted. That means that if the claims are not presented to the state courts

in the way in which state law requires, and the state courts therefore do not decide the

claims on their merits, neither may a federal court do so. In the words used by the

Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law

which were not resolved on the merits in the state proceeding due to respondent's

failure to raise them there as required by state procedure” also cannot be resolved on

their merits in a federal habeas case - that is, they are “procedurally defaulted.” 

Wainwright makes clear, however, that the state procedural rule which was not

followed, and which led the state courts to reject a petitioner’s claims other than on the

merits, must constitute an “adequate and independent state ground” for the state

courts’ decision. See id. What that means, in practice, is that whatever state procedural

rules that the state courts invoked must “serve[] a legitimate state interest,” Henry v. 

Mississippi, 379 U.S. 443, 447 (1965), and the state must regularly enforce those rules

against litigants. As the Court of Appeals has said, “[t]he adequacy of a state

procedural bar turns on whether it is firmly established and regularly followed ....” 

Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005). But when a petitioner for habeas corpus

relief does not follow a state procedural rule which serves important state interests;

does not get a hearing on the merits of his federal claims because he did not follow that

rule; and the rule is one which the state courts regularly enforce against similarly8

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situated litigants, this federal court cannot consider his claims on their merits.

There are exceptions to this rule, of course. Sometimes a state prisoner is

prevented from following a state procedural rule due to circumstances completely

beyond his control, such as the state’s affirmative efforts to block him from complying

with the rule, or errors of counsel which are so egregious that they violate the

constitutional right to effective assistance of counsel. See, e.g., Murray v. Carrier, 477 U.S.

478 (1986). When that happens, and when the petitioner can show that the claim has

some potential merit, he is said to have satisfied the standard set forth in Wainwright,

supra, of showing “cause and prejudice” to excuse a procedural default. Such a default

can also be excused if a petitioner shows that he is probably innocent of the crime he

has been found guilty of committing. See Schlup v. Delo, 513 U.S. 298 (1995). But if a

petitioner cannot make these showings, the procedural default doctrine requires that his

claims be dismissed. With this background in mind, the Court turns to an analysis of

each of the two attempts made by petitioner to bring his claims before the Ohio

Supreme Court.

A. The Direct Appeal

Petitioner’s direct appeal failed because he did not file a memorandum in

support of jurisdiction. Under the Ohio Supreme Court’s rules of practice (formerly

Rule II(A)(1)), a notice of appeal from a decision of an Ohio appellate court must be

filed within 45 days of the entry of that decision and must be accompanied by a

memorandum in support of jurisdiction. The Ohio Supreme Court routinely applies

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this rule to strike untimely filings and to dismiss appeals. See, e.g., Crise v. Cleveland, 98

Ohio St.3d 1481 (March 11, 2003). The Court of Appeals has found this rule to be an

adequate and independent ground for dismissing an appeal under Ohio law. See Smith

v. State of Ohio Department of Rehab. and Corr., 463 F.3d 426, 431-32 (6th Cir. 2006)(“We 

have previously held that denial of review on the basis of Rule II § 2(A)(4)(a) is an

adequate procedural ground to foreclose federal habeas review”). Because the Ohio

Supreme Court actually relied on this rule in dismissing petitioner’s appeal, all of the

grounds for enforcing a procedural default have been met. See Maupin v. Smith, 785

F.2d 135, 138 (6th Cir. 1986). Further, petitioner has offered no explanation for his failure

to file a memorandum in support of jurisdiction. Therefore, any issues which either

were raised, or could have been raised, in his direct appeal have been procedurally

defaulted. 

B. The Rule 26(B) Motion for Reopening 

The second state rule which petitioner failed to follow is the requirement that he

file any Rule 26(B) motion for reopening within 90 days of the date that the state

appellate court makes its ruling. Rule 26(B) clearly contains this requirement, and

petitioner does not contend otherwise. Ohio is allowed to have such a rule, because it

serves important state interests in making sure that criminal proceedings are completed

in a timely fashion. The Court of Appeals has stated, authoritatively, that “Rule 26(B) is

an adequate and independent ground on which to find procedural default.” Wogenstahl

v. Mitchell, 668 F.3d 307, 322 (^th Cir. 2012). Ohio courts will excuse an untimely filing

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based on a showing of good cause, but the fact that they do so in some cases does not

mean that the rule requiring the filing of such a motion within 90 days of the state

court’s decision is not followed on a regular basis. “Since 1996, ‘Ohio law has provided

sufficient guidance on what constitutes a ‘good cause’ for a late filing under Rule 26(B),’

and ‘the time constraints of Rule 26(B) [have been] firmly established and regularly

followed.’ ” Id., quoting Hoffner v. Bradshaw, 622 F.3d 487, 504-05 (6th Cir. 2010)(quoting

Parker v. Bagley, 543 F.3d 859, 861 (6th Cir. 2008)). That means, as a practical matter, that

when the Third District Court of Appeals decided not to allow petitioner to file his

untimely motion to reopen his appeal, it was applying an adequate state procedural

rule which is regularly followed in Ohio, and the claims which that court refused to

hear for that reason - the two claims concerning ineffective assistance of appellate

counsel, which petitioner also raised in his supplemental filing here - were procedurally

defaulted.

Petitioner has not argued here that he had a good reason for not filing his Rule

26(B) motion on time. He told the state appeals court, however, that the filing was late

because he addressed it incorrectly but did not know he had done so until after the

mailing came back, and that did not happen until after his time for filing a proper Rule

26(B) motion had expired.

Petitioner may have an explanation for what happened, but that is not the same

as proving “cause” for a procedural default. The Supreme Court has said that “the

existence of cause for a procedural default must ordinarily turn on whether the prisoner

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can show that some objective factor external to the defense impeded counsel's efforts to

comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). 

While it is true that petitioner had no control over how long the Postal Service took to

return his mis-addressed motion, the same cannot be said for his original error in

putting the wrong address on the envelope. Petitioner has not explained how that

happened, nor claimed that the State of Ohio did something to mislead him into

believing that he had correctly addressed his mailing. Only errors which “cannot fairly

be attributed to” a petitioner will excuse a procedural default. Coleman v. Thompson, 501

U.S. 722, 753 (1991). Because the initial error which led to the untimely filing of

petitioner’s Rule 26(B) motion was his, and can be fairly attributed to him rather than to

some objective and external factor, he simply cannot show the type of cause needed to

excuse his procedural default.

There might be some question in petitioner’s mind, however, about the

significance of two things: the fact that the Third District Court of Appeals made an

alternative ruling on the merits of his two claims of ineffective assistance of appellate

counsel, and the fact that the Ohio Supreme Court did not really explain why it did not

accept his appeal other than saying that it did not involve a substantial constitutional

question. Neither of these prevented his ineffective assistance of appellate counsel

claims from being defaulted, however.

The Ohio Supreme Court customarily declines to hear appeals in short orders

which state only that the case does not involve a substantial constitutional question. 

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When that happens, this Court must look to the last state court decision which contains

a statement of reasons to see if the default was enforced. Hinkle v. Randle, 271 F.3d 239,

244 (6th Cir. 2001)(“In determining whether state courts have relied on a procedural rule

to bar review of a claim, we look to the last reasoned opinion of the state courts and

presume that later courts enforced the bar instead of rejecting the defaulted claim on its

merits”), citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The last reasoned decision

was the Third District Court of Appeals’ decision holding that the Rule 26(B) motion

was not timely filed. The fact that the same decision relied on alternative grounds, one

of which was that the claims raised in the motion lacked merit, does not mean that the

procedural default was not enforced; Supreme Court precedent, and specifically its

decision in Harris v. Reed, 489 U.S. 255 (1989), “does not preclude a finding that the state

procedural rule was actually enforced where the state court decision also relies on an

alternative ground.” Scott v. Mitchell, 209 F.3d 854, 865 (6th Cir. 2000). Relying on these

precedents, this Court has consistently held that “an alternative ruling on the merits by

a state appellate court of an otherwise waived claim does not forgive the waiver or

otherwise revive the claim for purposes of habeas corpus review.” Johnson v. Bobby,

2009 WL 3124423, *34 (S.D. Ohio Sept. 29, 2009). Consequently, these two claims, raised

by petitioner’s supplemental filing in this case, are also procedurally defaulted. Since

petitioner failed properly to present any of his claims to the Ohio Supreme Court, he

cannot raise any claims here, and his petition for a writ of habeas corpus must be

dismissed.

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 IV. RECOMMENDED DISPOSITION

For all the foregoing reasons, the Magistrate Judge RECOMMENDS that the

petition for a writ of habeas corpus be DISMISSED and that the pending motion to

reconsider the order denying petitioner’s motion for appointment of counsel be denied. 

His more recent motion to appoint counsel (Doc. 17) is denied as well.

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within

fourteen days of the date of this Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge of this Court shall

make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. Upon proper objections, a

judge of this Court may accept, reject, or modify, in whole or in part, the findings or

recommendations made herein, may receive further evidence or may recommit this

matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review

the Report and Recommendation de novo, and also operates as a waiver of the right to

appeal the decision of the District Court adopting the Report and Recommendation. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

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 /s/ Terence P. Kemp 

United States Magistrate Judge

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