NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1114n.06 No. 11-3369 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT BRIAN DOLIBOA, ) ) P etitioner -Appellant, ) ON AP P EAL FR OM THE ) UNITED STAT ES DIS TRICT v. ) COURT F OR THE S OUTHERN ) DISTRICT OF OHIO WARDEN U. S. P ENITENT IARY ) TERRE HAUTE , INDIANA; OHIO ) DEP ARTMENT OF REHABILI TATION ) AND CORRECTIONS ; RICHARD ) CORDRAY , Ohio Attorney G eneral, ) ) Respondents-Appellees. )

BEFORE: BOGG S and CLAY, Circ uit Jud ges; and ST AF F ORD, Distric t Judge. * STAFF ORD, District Judge. Br ian Do l i b o a ap p eals the district court' s denial of his 28 U.S.C. § 2254 petiti o n for a writ of habea s corpus. The district court deter mined that Doliboa proce durally defau l t ed his claims by failing to file a timely appea l to the Ohio Supreme Court. Doliboa admits that he failed to file a timely appea l to the state supreme court but maintains that his proce dural de fault should be excused for cause . We AF F IRM the district court' s judgme nt. I

. In 2007, a jury in Warren County , Ohio, found Doliboa g uilty of (1) possession of coca ine, with an acc ompanying major drug offe nder specific ation, and (2) possession of marijuana

. The Ohio trial court sentenc ed Doliboa to a total of fiftee n y ear s in state prison, to be serve d consec utively to

T h e Honora

ble Wil liam H. Stafford, J r., Senior United States District J udg e for th e * Norther n District of F lorida, sitting by desig nation.Page 2 o f 6

a fede ral sentenc e he was alre ady serving at the United States Penitentiary in Terr e Haute, Indiana. After he was sentenc ed in O hio, Doliboa was returne d to I ndiana to c omplete his f

eder al sentenc e. The Ohio Court of Appea ls aff irmed the trial court' s judgme nt on October 13, 2008. Doliboa did not file a timely appea l to the Ohio Supreme Court. On November 25, 2009, more than a

y ear afte r the Ohio Court of Appea ls aff irmed the state trial court' s judgme nt, Do l i b o a— t hroug h new counsel—filed a petition for writ of habeas co rp us in fede ral district court. On April 19, 2010, almost five months afte r filing his fede ral hab eas petition, Doliboa filed a motion in the Ohio Supreme Court for leave to file a delay ed appea l. The Ohio Supreme Court denied the motion in a summary order

. In a repor t and rec ommendation dated Dec ember 14, 2010, a mag istrate judge rec ommended that Doliboa' s fede ral petition for writ of habea s corpus be denied. The mag istrate judge deter mined that the Ohio Supreme Court's denial of Doliboa' s motion for leave to fi l e a d elayed appea l const ituted an adequa

te and independe nt state proce dural ruling sufficie nt to bar fede ral h ab ea s revie w absent a showing of cause and prej u d ice or a fundame ntal miscarr iag e of justice. The mag istrate judge reje cted Doliboa' s arguments that he demonstrated cause beca use he l acke d the mental capa city , knowledg e, or leg al skills to file a timely appea l, he was unable to find and lacke d the funds to hire an attorney , and he lacke d acc ess to Ohio leg al materia ls when he was incar cer ated in Indiana. The mag istrate judge found neither cause for Doliboa' s proce dural defa ult nor a showing of a fundame ntal miscarr iag e of justice, and he conclude d that Do l i b oa had waived his claims for fede ral habea s relief

. The district court adopted the mag istrate judge ' s rec ommendation and denied Doliboa' s habea s petition. This court gr anted a cer tificate of appea lability

on the issue of whe therPage 3 o f 6

Doliboa established cause for his proce dural defa ult based on his lack o f acc ess to Ohio leg al materia ls while incarc erated in an out-of- state fe dera l prison. I I

. Whether there is cause for Doliboa' s proce dural defa ult is a question of law that is revie wed de novo

. Cvijetinovic v. Ebe rlin, 617 F.3d 833, 836 ( 6th Cir. 2010). In Miller v. Marr , 141 F.3d 976 (10th Cir. 1998), t h e Tenth C ircuit considere d the case of

an inmate (" Miller") who filed an untimely fede ral habea s action challeng ing a Colorado conviction. Miller argued that his proce dural defa ult should be excused beca use he lacke d acc ess to federal statutes and Colorado case law while he was housed at a private Minnes o t a co rr ec t i o nal fac ility

. Noting that Miller "pr ovided no specific ity reg arding the alleg ed lack of acc ess and the steps he took t o diligently pursue his fede ral claims," the court found no cause to excuse Miller' s proce dural defa ult. Id. at 978. I n the words o f t h e T en t h C i rcuit: "It is not enoug h to say that the M innesota fac ility lacke d all rele vant statutes and c ase law or t hat t he procedure to reque st specific materia ls was inadequate." Id.; see al so Lewis v. Casey , 518 U.S. 343, 351 (1996) (noting, in an acce ss-tocourts context, that "a

n inmate cannot establish rele vant actua l injury simply by establishing that his prison' s law library or leg al assistance prog ram is subpar in some theore tical sense . . . [but ] must g o

one step further an d d em o n strate that the alleg ed shortcoming s in the library or leg al assistance prog ram hinder ed his eff

orts to pur sue a leg al claim" ); Jones v. Armstrong , 367 F. App' x 256, 258 (2d Cir. 2010) (noting that the burden is on an inmate seeking t o est ablish cause for proce dural defa ult to show that the inadequa cy of the prison' s leg al resour ces "ma de it impossi b l e for him to

acc ess the cour

ts to raise his claims" ).Page 4 o f 6

Her e, Doliboa has failed t o p ro v ide specific s about what he did, if any thing, to diligently pursue his claims befor e the Ohio Supreme Court. There is nothing in the rec ord to s u gges t t h at Doliboa re quested Ohio leg al mater ials from t he Ohio courts, from the prison officia ls in Indiana, from t h e i n m at e law cler ks at the fede ral penitentiary , or from the Ohio lawyer who repr esente d Doliboa both at trial and dur ing his a ppeal to the Ohio Court of Appeals. There is also nothing in the rec ord to sug g est h o w t h e unavailability of Ohio leg al materia ls preve nted Doliboa from prese nting to the Ohio Supreme Court the very arguments that his former counsel articulated—and supported with case law—in Doliboa' s intermediate appea l to the Ohio Court of Appea ls. See Levy

v. Ohio , No. 1:06-CV-237, 2008 WL 339480, at *15 (N.D. Ohio Fe b. 6, 2008) (finding petitioner' s complaint that he lacke d acc ess to Ohio leg al materia ls while in fede ral prison insufficient to show

cause to excuse pro ce d u ra l defa ult wher e, among other things, the underly ing leg al rese arc h supporting his claims had been done by counsel on intermediate state appea l); Marr , 141 F.3d at 978 (re jecting pro se petitioner' s argument that lack of acc ess to cer tain leg al materia ls cause d his defa ult wher e petitioner had alre ady prese nted his claims—throug h counsel—on direc t appea l); Armstrong , 367 F. App' x at 258 (finding no cause to excuse proce dural defa ult wher e the inmate petitioner failed to explain how any alleg ed inadequa cy of the leg al resour ces made available to him in a Connecticut prison preve nted him from prese nting t o the Connecticut Supreme Court arguments alre ady prese nted in an interme diate state a ppeal)

. Doliboa' s relianc e on Phillips v. Mills , No. 98-5061, 1999 WL 685925 (6th C i r. Au g . 25, 1999) is misplaced. I n that case , the petitioner (" Phill ips") was serving a sentenc e for arme d robber y in Alabama when he was extradited to Tenne ssee to fac e state char g es there

. After Phill ips pleade d g uil t y an d wa s s en tence d in Tenne ssee, he was returne d to Alabama to finish his sentenc e in thatPage 5 o f 6

state. Soon afte r his return to Alabama , Phill ips wrote to his Alabama prison counselor reque sting Tenne ssee leg al materia ls that wer e unavailable in the Alabama prison library

. Not u n til he had written to his counselor thre e times did Phil lips rece ive the followingresponse : Your re q u es t for leg al materia ls has been denied. The State of Alabama is not ob l i gat ed to supply y ou with leg al assis tance in order to attack y our convictions in the State of Tenne ssee. You will have to be returne d to Tenne ssee befor e attacking y our convic tions. Id. at *2. L ess than four months a fter he was returne d to T ennesse e but more tha n four year s after his Ten n essee conviction beca me final, Phill ips filed a petition for post-conviction relief in Tenne ssee. The Tenne ssee trial court ruled that P h i l l i p s 's petition—filed outside the three -y ear limit ations period—wa s untimely

. The trial court' s ruling was aff irmed by the Tenne ssee Court of Criminal Appeals. Phill ips there afte r filed a petition for a writ of habea s corpus in fede ral court. A panel of this court—ove r a vigor ous dissent by J udg e Ry an—af firmed the district co urt' s decision t hat P hillips established ca

use to excuse the proce dural defa ult that ensued from the untimely filing of his state post-convict i o n motion. The majority relied on the uncontrove rted evidenc e demonstrating that, while incar cer ated in Alabama , Phill ips had not only repe atedly reque sted acc ess to Tenne ssee leg al materia ls without succe ss but had also been err oneously advised by an Alabama prison officia l that he would have to wait until his return to Te nnessee to attack his convic tions in t hat state. In Doliboa' s case , the mag istr ate judge and the district court appropr iately distinguished Phillips, finding that Doliboa, unl ike P hillips , not only failed to demonstrate that he t o o k s t ep s to reque st Ohio leg al m ater ials but also failed to demonstrate that he wa s gi v en err oneous advice by prison officia ls. To be sure, Doliboa does alleg e that a lawy er err oneously told his sister that Doliboa should not file with the state supreme court but should instead file a "2255" by himself, but such anPage 6 o f 6

alleg ation does not support a finding of cause to e x cuse Doliboa' s proce dural defa ult. See Tolli ver

v. Sheets , 594 F.3d 900, 929 (6th Cir. 2010) (noting that, wher e a criminal defe ndant has no constitutional rig ht to counsel, any poor advice he rec eives from an attorney cannot establish cause for a proce dural defa

ult); W ainwright v. Torna , 455 U.S. 586, 587 (1982) (not i n g t h at a criminal defe ndant does not have a constitutional rig ht to counsel to pursue discr etionary state appe als). To establish cause in this case , Doliboa must do more than alleg e that the fede ral penitentiary in Indiana lacke d Ohio leg al materia ls. Be cause he has not done so, we find that Doliboa has failed to establish cause for his proce dural defa ult. We acc ording ly AF F IRM the district court' s judgme nt.