IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL HEAD

CASE NO. 2:12-CV-1161

Petitioner, JUDGE ALGENON L. MARBLEY

Magistrate Judge Elizabeth A. Preston Deavers

v. 

WARDEN, ROSS CORRECTIONAL

INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. This case involves Petitioner’s August 30, 2012 convictions after a jury

trial1 in the Franklin County Court of Common Pleas on aggravated robbery, robbery and

felonious assault. The Court of Common Pleas imposed an aggregate term of eighteen years of

incarceration. This matter now is before the Court on the instant petition, Respondent’s Motion

to Dismiss, Petitioner’s Response and the exhibits of the parties. For the reasons that follow, the

Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss, Doc. No. 9, be

GRANTED and that this action be DISMISSED. 

Facts and Procedural History: 

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of

this case as follows:

Antonio Tucker was in need of money because construction work

was slow. He hoped to get a little quick cash by helping to set up a

drug deal between a willing buyer and a willing seller. The willing

seller did not show up when planned, but Tucker went over to a

1

  Petitioner elected to be tried by the judge on Count Five of the indictment only, in which he was charged with

having a weapon while under disability. The trial court found him not guilty of this offense. 

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house on Fabron Avenue in Columbus, Ohio, to meet with the

buyer anyway. Tucker knew the buyer as “Gutter,” a name used by

Head.

When Tucker went inside the residence on Fabron Avenue, he was

soon approached by a man with a mask and a gun who demanded

the marijuana Tucker was supposedly bringing. Head was right

behind the man in the mask and was armed with a silver handgun. 

Head and the masked man made Tucker lie on the floor and

repeatedly asked him where the “weed” was. Eventually, Head

gave Tucker a cell phone to call the marijuana dealer and arrange

for the delivery.

Finally, Tucker decided to fight and/or flee. He was able to grab

the gun from the masked man, who then yelled at Head to “Shoot

him. Shoot him.” (Tr. 129.)

Multiple shots were fired, one of which struck Tucker in the chin.

Tucker later sought treatment at a local hospital, which resulted in

his talking to a police detective. The detective had been to the

Fabron Avenue residence after a neighbor made a 911 call

claiming shots had been fired. The detective found evidence of a

shooting and a person being wounded.

Tucker was initially slow to be truthful because he was on parole.

Eventually, Tucker told police what he later stated at Head's trial.

The trial testimony of Tucker alone was more than sufficient to

support the jury finding that Head was guilty of an aggravated

robbery when he attempted to steal marijuana from Tucker while

Head was armed with a functional firearm.

The evidence was also sufficient to support a finding of felonious

assault. Tucker disarmed one of his robbers, who then yelled at

Head to “[s]hoot him,” meaning Tucker. The shooting started

almost immediately. Head still had a firearm when the shooting

started. There was no evidence indicating that anyone else was

inside the house with a firearm at that time.

***

. . . . Tucker was clearly shot in the face requiring medical

treatment. His story about where he got shot was supported by

shell casings and blood found at the Fabron Avenue address. No

other evidence about how the shooting occurred was presented to

weigh against Tucker's testimony. 

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State v. Head, No. 11-AP-58, 2011 WL 3847127, at *1-2 (Ohio App. 10th Dist. Aug. 30, 2011). 

Petitioner was sentenced to an aggregate term of eighteen years of incarceration. See Exhibit 8

to Motion to Dismiss. Represented by new counsel, Petitioner timely appealed, asserting as

follows: 

I. THE TRIAL COURT ERRED IN OVERRULING THE

DEFENDANT'S RULE 29 MOTION AS THERE WAS NOT

SUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT.

I. THE TRIAL COURT VIOLATED MICHAEL L[.] HEAD'S

RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT

ENTERED JUDGMENT OF CONVICTION FOR AGG.

ROBBERY, ROBBERY AND [F]ELONIOUS ASSAULT

WHICH WAS AGAINST THE MANIFEST WEIGHT OF [T]HE

EVIDENCE AND THE FIFTH AND FORUTEENTH [sic]

AMENDMENTS TO THE U.S. CONSTITUTION, AND

SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

JUDGMENT ENTRY.

Id. at *1. On August 30, 2011, the Ohio Court of Appeals affirmed the trial court’s judgment. 

Id. Petitioner did not file a timely appeal to the Ohio Supreme Court. On December 22, 2011,

he filed a motion for a delayed appeal. See Exhibits 15, 16 to Motion to Dismiss. On February

22, 2012, the Ohio Supreme Court dismissed his motion for a delayed appeal. State v. Head, 131

Ohio St. 3d 1455 (2012).

Petitioner also pursued post-conviction relief. On August 11, 2011, Petitioner filed a

petition to vacate or set aside sentence pursuant to Ohio Revised Code § 2953.21 asserting that

he had been denied effective assistance of counsel because his attorney refused to present

witness who would have testified to Petitioner’s alibi defense. See Exhibit 9 to Motion Dismiss. 

The record does not indicate the disposition of this action. 

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On November 11, 2011, Petitioner filed a motion for re-sentencing, arguing that the

sentences on aggravated robbery and felonious assault should be merged as allied offenses of

similar import. See Exhibit 11 to Motion to Dismiss. On October 11, 2012, the trial court

denied Petitioner’s motion for re-sentencing. Petitioner did not file an appeal of this decision.

On December 17, 2012, Petitioner filed the instant pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. He asserts that the evidence is constitutionally insufficient

to sustain his claims and that the trial court therefore improperly denied his motion for acquittal. 

He also asserts that his convictions are against the manifest weight of the evidence. It is the

position of the Respondent that both of these claims are procedurally defaulted and therefore

must be dismissed.

Procedural Default:

In recognition of the equal obligation of the state courts to protect the constitutional

rights of criminal defendants, and in order to prevent needless friction between the state and

federal courts, a state criminal defendant with federal constitutional claims is required to present

those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the

petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is

subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S.

722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural

default, the petitioner can no longer present the relevant claims to a state court, the petitioner

also waives the claims for purposes of federal habeas review unless he or she can demonstrate

cause for the procedural default and actual prejudice resulting from the alleged constitutional

error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v.

Carrier, 477 U.S. 478, 485 (1986).

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In the Sixth Circuit, a court must undertake a four-part analysis to determine whether

procedural default is a bar to a habeas petitioner’s claims. Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986); see also Scuba v. Brigano, 259 F. App’x. 713, 718 (6th Cir. 2007) (following the

four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth

Circuit requires the district courts to engage in the following inquiry:

First, the court must determine that there is a state procedural rule

that is applicable to the petitioner’s claim and that the petitioner

failed to comply with the rule. . . . Second, the court must decide

whether the state courts actually enforced the state procedural

sanction. . . . Third, the court must decide whether the state

procedural forfeiture is an adequate and independent state ground

on which the state can rely to foreclose review of a federal

constitutional claim. 

Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if “the court determines that a

state procedural rule was not complied with and that the rule [has] an adequate and independent

state ground, then the petitioner” may still obtain review of his or her claims on the merits if the

petitioner establishes: (1) a substantial reason to excuse the default and (2) that he or she was

actually prejudiced by the alleged constitutional error. Id. "Cause" under this test “must be

something external to the petitioner, something that cannot fairly be attributed to him[;] . . . some

factor external to the defense [that] impeded [] efforts to comply with the State’s procedural

rule.” Coleman, 501 U.S. at 753. This “cause and prejudice” analysis also applies to failure to

raise or preserve issues for review at the appellate level or failure to appeal at all. Id at 750.

Nevertheless, “‘[i]n appropriate cases’ the principles of comity and finality that inform

the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally

unjust incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135

(1892)). Petitioners who fail to show cause and prejudice for procedural default may

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nonetheless receive a review of their claims if they can demonstrate that a court’s refusal to

consider a claim would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at

750; see also Lott v. Coyle, 261 F.3d 594, 601–02 (6th Cir. 2001) (same). The fundamental

miscarriage of justice exception requires a showing that “in light of the new evidence, no juror,

acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup v.

Delo, 513 U.S. 298, 329 (1995). 

Here, although he properly asserted both grounds for relief in his direct appeal to the

Tenth District Court of Appeals, Petitioner failed to file a timely appeal with the Supreme Court

of Ohio from the appellate court’s decision. The requirement of filing a timely appeal is an

applicable procedural rule which Petitioner failed to follow. Rule of Practice II of the Ohio

Supreme Court, Section 2(A)(1) and 2(A)(4) which, at the time of Petitioner’s appeal in this

case, provided in relevant part: 

(1) (a) To perfect an appeal from a court of appeals to the Supreme

Court, other than in a certified conflict case ... the appellant shall

file a notice of appeal in the Supreme Court within forty-five days

from the entry of the judgment being appealed. The date the court

of appeals filed its judgment entry for journalization with its clerk .

. . shall be considered the date of entry of the judgment being

appealed . . . .

(b) Except as provided in divisions (A)(2), (3), (4), (5), and (6) of

this rule, the time period designated in this rule for filing a notice

of appeal and memorandum in support of jurisdiction is

mandatory, and the appellant's failure to file within this time

period shall divest the Supreme Court of jurisdiction to hear the

appeal....

(4) (a) In a felony case, when the time has expired for filing a

notice of appeal in the Supreme Court, the appellant may seek to

file a delayed appeal by filing a motion for delayed appeal and a

notice of appeal. The motion shall state the date of entry of the

judgment being appealed and the reasons FN3 for the delay. Facts

supporting the motion shall be set forth in an affidavit. A copy of

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the court of appeals opinion and the judgment of entry being

appealed shall be attached to the motion.

(b) A memorandum in support of jurisdiction shall not be filed at

the time a motion for delayed appeal is filed. If the Supreme Court

grants a motion for delayed appeal, the appellant shall file a

memorandum in support of jurisdiction within thirty FN4 days

after the motion for delayed appeal is granted....

Ohio S.Ct. Prac. R. 2, § 2.2(A)(1)(a), (1)(b), (4)(a), & (4)(b) (2010) (footnotes omitted). 

Here, there is no dispute that petitioner failed to file an appeal to the Ohio Supreme Court

within 45 days of the date of journalization of the decision of the appellate court. Moreover, the

record demonstrates without any dispute that the Ohio Supreme Court denied petitioner's motion

for delayed appeal. The Sixth Circuit has concluded that a denial of a motion for leave to file a

delayed appeal is a procedural ruling rather than one on the merits. Bonilla v. Hurley, 370 F.3d

494, 497 (6th Cir. 2004). The court in Bonilla explained that the Rule regarding a motion for a

delayed appeal does not require inclusion of the actual claims and supporting arguments sought

to be presented on appeal. 370 F.3d at 497. Rather, it is only when the Ohio Supreme Court

grants such a motion that the appellant must file a memorandum in support of jurisdiction. Id. at

497. “Thus, the applicable Ohio court rules indicate that the denial of a motion for a delayed

appeal is a procedural ruling, not a ruling on the merits.” Id.; see also Walker v. Martin,-- U.S. --

, -- --, 131 S.Ct. 1120, 1128–29 (2011) (holding that the California Supreme Court's denial of a

petition as untimely constituted a procedural default notwithstanding the fact that the court

could, instead, review the petition and determine the petition was meritless, stating “[w]e see no

reason to reject California's time bar simply because a court may opt to bypass the [timeliness]

assessment and summarily dismiss a petition on the merits, if that is the easier path”); Coleman,

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501 U.S. at 750 (holding that denial of a request for a delayed appeal is a procedural default

without a merits review). Thus, the first factor of Maupin has been satisfied.

The second Maupin factor has also been satisfied. The Ohio Supreme Court necessarily

enforced this procedural sanction when it denied Petitioner’s motion for leave to file a delayed

appeal. Although the Ohio Supreme Court did not articulate its reason for dismissing the delayed

notice of appeal, federal courts are not to assume that state courts do not observe their own

procedural bars, but instead must assume that state courts enforce those bars. Simpson v.

Sparkman, 94 F. 3d 199, 203 (6th Cir. 1996) (citations omitted); see also Barkley v. Konteh, 240

F. Supp. 2d 708, 712 (N.D. Ohio 2002) (“By its very nature, a denial of a motion for leave to file

a delayed appeal is a denial solely on procedural grounds even if the court does not expressly

cite the procedural bar in its denial.”). 

Turning to the third prong of the Maupin analysis, “a federal court is generally barred

from considering an issue of federal law arising from the judgment of a state court if the state

judgment rests on a state-law ground that is both independent of the merits of the federal claim

and an adequate basis for the state court's decision.” Stone v. Moore, 644 F.3d 342, 345 (6th Cir.

2011) (internal quotations and citations omitted). “To qualify as an ‘adequate’ procedural

ground, a state rule must be “firmly established and regularly followed.” Walker v. Martin, --

U.S. --, --, 131 S.Ct. 1120, 1127 (2011) (citations omitted). The Supreme Court has held that a

“rule can be ‘firmly established’ and ‘regularly followed,’ . . . even if the appropriate exercise of

discretion may permit consideration of a federal claim in some cases but not others.” Id. at 1128

(internal quotations and citations omitted).

 Following Walker, the issue in this situation is not how often a state court either grants

or denies motions to pursue untimely appeals. Rather, the relevant question is whether

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“discretion has been exercised to impose novel and unforeseeable requirements without fair or

substantial support in prior state law. . . .” Walker, 131 S.Ct. at 1130 (internal citations and

quotations omitted). However, as in Walker, Petitioner here does not contend that the state court

exercised its discretion in a surprising or unfair manner. Further, no evidence supports the

conclusion that the Ohio Supreme Court did so. Thus, the Court finds that the Ohio Supreme

Court's reliance on Supreme Court Rule of Practice II is an adequate and independent ground

supporting its refusal to hear petitioner's direct appeal.

The fourth and final prong of the Maupin analysis, specifically whether there was cause

for Petitioner’s failure to follow the procedural rule and actual prejudice caused by the alleged

constitutional error, supports a finding of procedural default. “In order to establish cause, a

habeas corpus petitioner must show that ‘some objective factor external to the defense’

prevented the petitioner's compliance with a state procedural rule.” Bonilla, 370 F.3d at 498

(citation omitted). Both cause and prejudice must be shown to excuse a procedural default. Id.

at 497 (citation omitted).

Petitioner asserts as cause for his procedural default a claim of ineffective assistance of

appellate counsel based on the failure of his appellate attorney to timely notify him of the

appellate court’s decision denying his appeal. Petitioner states that on June 22, 2011, he

received a letter from his attorney indicating that he would be notified when the appellate court

issued a decision on his case. Exhibits 2, 4. On November 8, 2011, and after the time period to

file an appeal to the Ohio Supreme Court, Petitioner states that he learned in the prison’s law

library that the appellate court had denied his appeal. Exhibits 5, 6 (indicating that Petitioner

received no legal mail from August 30, 2011 to December 14, 2011). On December 18, 2011,

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41 days after Petitioner states that he learned of the appellate court’s decision, Petitioner filed his

motion for a delayed appeal. Exhibit 6. 

“[I]gnorance of the law and procedural requirements for filing a timely notice of appeal

is insufficient to establish cause to excuse [a] procedural default.” Bonilla, 370 F.3d at 498.

However, to the extent that petitioner did not know that there was a ruling in his case because his

appellate counsel failed to promptly notify him of the state court of appeals' decision, that failure

could constitute ineffective assistance of counsel sufficient to demonstrate cause for the

procedural default. Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 432–35 (6th Cir.

2006).

Where, as here, “a [petitioner] alleges that his counsel's ineffective assistance led to ‘the

forfeiture of a proceeding itself’ ... the [petitioner] must demonstrate that counsel's deficient

performance ‘actually cause[d] the forfeiture of the [petitioner's] appeal.” Smith, 463 F.3d at 435

(internal citations and quotations omitted). Petitioner, however, cannot establish cause for his

procedural default because Petitioner also waived his claim of ineffective assistance of appellate

counsel by failing to present that claim to the Ohio courts. The Court of Appeals for the Sixth

Circuit has held that “[a] claim of ineffective assistance of counsel must be presented to the state

courts as an independent claim before it may be used to establish cause for procedural default.” 

Id. at 436, n.7 (citations and internal quotations omitted). Here, Petitioner failed to litigate the

ineffective assistance of counsel claim in the state courts. He did not file an application to

reopen his appeal under Ohio R. App. P. 26(B), which would have been the proper method of

bringing an ineffective assistance of appellate counsel claim. Id.; see also Arnold v. Warden,

Lebanon Corr. Inst., 832 F. Supp. 2d 583, 859 (S.D. Ohio 2011) (noting proper method to bring

ineffective assistance of counsel claim is through Ohio R. App. 26(B)). Therefore, Petitioner has

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procedurally defaulted his ineffective assistance of counsel claim and cannot present it here to

demonstrate cause for his default of his underlying habeas claims.

Beyond the four-part Maupin analysis, this Court is required to consider whether this is

“an extraordinary case, where a constitutional violation has probably resulted in the conviction

of one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley,

505 U.S. 333 (1992). The record fails to indicate that Petitioner can meet this standard here. 

This Court concludes that Petitioner has failed to establish cause for both of the claims

for federal habeas corpus relief.

WHEREUPON, the Magistrate Judge RECOMMENDS that Respondent’s Motion to

Dismiss, Doc. No. 7, be GRANTED and that this action be DISMISSED. 

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

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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).

The parties are further advised that, if they intend to file an appeal of any adverse

decision, they may submit arguments in any objections filed, regarding whether a certificate of

appealability should issue.

s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers

United States Magistrate Judge

Date: February 3, 2014

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